We just released our new free ebook “Start Ups Legal Toolkit 2018” with a super fun and interactive presentation at Ministry of Awesome‘s “Coffee & Jam” in Christchurch, New Zealand – had a busking theme with a bit of juggling thrown in from Steven Moe and Kris Morrison!

For more info on the book click here

(If you’d like a free copy of the startups ebook mentioned here just email stevenmoe@parryfield.com – also check out our other free resources for startups at Parry Field and our other recent book “Social Enterprises in New Zealand: A Legal Handbook” at Change for Good)

Also mentioned during the presentation: Seeds: Talking Purpose Podcast Greenhouse Christchurch & Canterbury NZ

We get many questions from start-ups, charities and social enterprises on what they need to consider when establishing themselves. This made us think – “why not put all our answers in one spot?!”

After the initial buzz of coming up with your great idea, the next practical stage can be quite overwhelming – particularly if this is your first time engaged in a start-up. This toolkit seeks to guide you through the process, informing you on different structures, key contracts, and highlighting the topics people often forget about.

The book covers a range of topics including:

how to set up a company;
specific guidance on social enterprise and not for profits;
fundraising;
liability and ongoing duties;
employment issues; and
includes a template of a non-disclosure agreement.

With the success last year of “Social Enterprises in New Zealand: A Legal Handbook,” we are excited to see the impact this book will have.

To get the ebook, click here.

The book launch, which includes a bit of a busking theme by Kris Morrison and Steven Moe can be viewed here

If you find this resource helpful then please consider joining us in spreading the word to others by sharing this page on social media or emailing the link to one or two other people.

The Government has announced the introduction of a new Bill to amend the Employment Relations Act 2000. Features of the Bill include supporting collective bargaining and union rights, statutory meal and rest breaks and banning the use of 90-day trial periods for businesses with 20 or more employees.

This last change has sparked some controversy over the years. Initially introduced in 2009, the current law allows employers to fire new staff within their first 90 days. They may do so without giving a reason, and without liability for unfair dismissal.

According to Statistics NZ, 98 per cent of all enterprises have 0-19 employees, with less than 1 per cent employing 100 or more people. However, these enterprises with more than 100 people engage 47 per cent of all employees in New Zealand.

While the change brings security to small business owners worried about barriers to hiring, the majority of employees also have the security of not being subject to this 90-day trial.

Minister for Workplace Relations and Safety, Iain Lees-Galloway has said “Good employment law strikes a balance between employers and workers. Under the previous Government the balance tipped away from fair working conditions for workers. We will restore that balance.”

To read the Government’s media release, click here.

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 with this, or with any other Employment matters, please contact Hannah Carey at Parry Field Lawyers (348-8480) hannahcarey@parryfield.com

When looking to purchase a house, you may note that some properties are marketed as “cross leases”. This article seeks to clarify what cross leases are, and what you need to look out for should you purchase one.

Cross leases were originally created as a convenient and cheaper alternative to a fee simple subdivision. As they are now included under the definition of subdivisions, cross leases are becoming a less desirable form of ownership. It is important to understand exactly how they operate, as they involve greater obligations than a fee simple title.

Fee Simple vs. Cross Lease

A “fee simple” title grants you the most freedom and access. It bestows the full, permanent and absolute occupancy (tenure) in the land and will last indefinitely (subject to the rights of the Crown in some instances).

A cross lease property still involves an underlying fee simple title; however each cross lease owner owns only a share in the overall property. In addition, each owner leases individual flats from all the fee simple owners. The lease term will typically be limited to 999 years. The Certificate of Title will include a Flat Plan, which highlights the area of each flat, the common areas (such as a shared driveway) and restricted areas that each owner has private use of, such as a garden.

Example

Alex, Bradley and Charlotte own three cross-leased properties: Flat A, Flat B and Flat C, on 1 Example Street. As a group, they collectively own the land, with no exclusive ownership of any specific part of the land. Instead, they each hold a one-third “undivided” share in the fee simple estate.

As a group, Alex, Bradley and Charlotte lease the flats to themselves individually. So Flat A is leased to Alex, Flat B to Bradley and Flat C to Charlotte. Their leases (which are registered on the title), provide exclusive use and enjoyment of the flats for each owner.

Should Alex wish to sell Flat A, he will be selling his 1/3 interest in the underlying fee simple title and his interest in the Flat A lease.

Tips on things to look out for:

Cross lease covenants: These are contained in the lease and each flat owner must comply with them. Examples of covenants include:
- Not altering or improving the leased structures without written consent from all other flat owners;
- Having a comprehensive insurance policy in place; and
- Allowing the inspection of each other’s flats to ensure compliance with the covenants.

In our experience, many cross lease owners simply ignore their obligations, which can cause issues down the track, most commonly when you come to sell the property.

A title condition in the Agreement for Sale and Purchase: This allows your lawyer to look over the title and related documents to ensure they are accurate and check for any issues.
How will the common areas be maintained? Before buying the property, it is important you are clear on expectations in relation to “shared” areas. How different insurance policies might respond to these areas, such as driveways, is also relevant.
Explore the relationship with the neighbours: As you will need their consent for alterations, it will be important to maintain a positive relationship with the other cross lease owners. Though be aware that the vendors may not want to disclose anything adverse given their desire to sell, hence you may need to carry out your own enquiries where possible.
Be careful to check that the actual property matches the Flat Plan: If any physical improvements or alterations have not been included on the flat plan, the title will, strictly speaking, be defective. This could affect whether you have leasehold title to the common or restricted areas, or to certain improvements. To remedy this, you will need to obtain the consent from the other owners, and have the flat plans amended. This can be time consuming and costly, so ideally you would require the vendor to sort this before you purchase the property. Indeed, in some instances the costs involved may mean it is prudent to explore converting the cross lease ownership to a fee simple one – the greater “freedom” of the latter might even result in the property increasing in value, which could offset any costs.

Cross leases can be complicated. If you are considering purchasing a cross lease property, it is essential that you obtain legal advice. Likewise, if you are thinking of selling your cross lease, you should also discuss your options with your lawyer before you take the property to market.

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Please contact Tim Rankin at Parry Field Lawyers (348-8480) timrankin@parryfield.com

We have come across a really useful tool recently created by the team at Digital Journey. It’s an online assessment that is free and after answering questions about your website and digital profile will provide you with recommendations of areas to improve.

This is definitely worth checking out!

I spoke with Richard Holstein about why they offer this and he said: “We don’t have a vested interest in selling new websites, specific apps or software products. We’re independent. Our free tools and resources, and paid services focus on helping organisations understand how they can use the Internet, online tools and digital technology effectively to improve how they operate. We believe online tools and digital technology should be easy, affordable and doable for everyone.”

You can access it here.

As we all know technology is become more and more important to understand and be on top of so we think this tool is worth checking out.

Speaking of new technology, here is a short interview recently about our innovative chat bot LISA that we will be talking about at a conference in Auckland in March 2018:

A key characteristic of so-called ‘exponential technologies’ is that they change what is possible extremely quickly – and it can be fascinating to observe how fast or slowly governments react. Lawyer Steven Moe looks at the developing world of space law, and questions whether similar moves are needed for other exponential technologies on our immediate horizon.

It is hard to imagine that Captain Kirk worried too much about legislation governing space travel on the Enterprise (apart from the ‘Prime Directive’, which was broken most episodes). Yet here in New Zealand we have some new space laws which have just been introduced in a bid to provide a framework and regulation around this burgeoning industry.

Just a few days before Christmas The Outer Space and High-altitude Activities Act 2017 commenced. Passed earlier in the year, it supports the development of the New Zealand space industry and opens up the possibility for New Zealand to be seen as even more of a world leader in this area than it already is. Many will be familiar with Rocket Lab, founded by Peter Beck, and these new laws are directly related to (and a result of) the success of that company. One of the key purposes in the new Act states it is there to “facilitate the development of a space industry and provide for its safe and secure operation”. When announcing the changes the press release issued at the time said:

“The New Zealand Government supports the development of an internationally credible, competitive and well connected NZ-based space economy that can make a difference in our everyday lives. Our regulatory regime is the key to making this happen. It enables the growth of a safe, responsible and secure space industry that meets our international obligations and manages any liability arising from our obligations as a Launching State.”

The new Act focuses on introducing rules around space launches and covers a variety of topics that were not previously covered (or had even been thought about before) such as:

launches into outer space
requirements for launch facilities
payloads (eg satellites) and high altitude vehicles (HAVs).

It does this through six types of licences or permits (for now, Rocket Lab still operates under a separate agreement it has with the government and will have six months to apply for a licence). The licensing and permit process will be administered by the newly created “New Zealand Space Agency” that sits within MBIE. This legislation has to be among the first to deal with the need to have a mitigation plan in place for orbital debris.

The regulatory impact statement issued in August 2017 makes for interesting reading as it outlines the background, reasons for the legislation and likely activity. For example, how much detail should applicants need to provide when applying for a licence or permit? Requiring too much information might put applicants off, but too little might not lead to well informed decisions. In the end, a pragmatic approach seems to have been chosen after consultation with the industry. It will be a case of watching to see how many applicants come forward or whether there are barriers to their participation. It is clear that the government is looking beyond just being a launch site – the new space agency states: “We believe New Zealand can become a significant player in the global commercial space launch industry. However, the opportunities for New Zealand are much broader than launch activities.”

It is worth pointing out that New Zealand was party to much earlier treaties, such as The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space from 1969. But it is certainly hard to imagine even a few years ago that we would now have legislation introduced dealing with “celestial bodies”, “space objects” and “high altitude vehicles”, yet here we are. If you had some space ambitions then it is best to read up on the requirements accessible here. There will be a review completed after three years.

Great, but what next? This is space we are talking about after all…

Of course, one of the next areas to consider will be the law surrounding space and planets – this is beyond just New Zealand of course. But how will the legal system in relation to planets develop? Will the powers that control resources here on Earth end up having more control than others on planets “up there”? After all, how do you legislate over the legal jurisdiction in outer space when it is off world territory – who owns asteroids, planets, the sun? The closest there is at present is the Outer Space Treaty, a multi-lateral international treaty which operates on the idea that space is for everyone. That’s a nice concept but what will it mean when we practically can go into orbit and start a mining operation on the Moon?

I recently interviewed Emeline Paat-Dahlstrom for a podcast I host about purpose and understanding what people have learned on their journeys. One of the first people to arrive in New Zealand on an Edmund Hillary Fellowship with a three year Global Impact Visa, Emeline is a co-founder of SpaceBase and co-wrote the 2013 book Realizing Tomorrow: The Path to Private Space Flight.

SpaceBase is aimed at “co-creating a global Space Ecosystem to serve entrepreneurs in emerging space industries – starting in New Zealand. Our goal is to provide access to training, networking, technical services, and investment opportunities where they are needed most.” I asked Emeline about the issue of who will own what up in space. Here’s what she told me:

“Really the reason why we are doing this is the democratisation of space, for everyone. And when we say for “everyone” – today you can really see a bright future with all of the things that are happening in terms of the space technology that is being brought forward in the US and China and Russia – but I am still not quite sure if the rest of the world is actually going to be in the same playing field. So when I mean a bright future I want everybody – and unfortunately today, you can see that gap widening, and so I don’t want to put that to chance.”

These are certainly challenging ideas to think through now in the relatively early days of space travel and exploration. As New Zealand leads the way and becomes a more widely known launch site it would be great if there could be a corresponding advocacy at an international level for a discussion of these other issues as well.

The full interview with Emeline on this and other space-related topics is accessible here.

How might this response impact other exponential technologies?

One real point of interest here is the extent to which commercial application of emerging and new technologies can lead to a quick reaction by government. Emerging technologies are coming out all the time now – to become exponential technologies they need to have the characteristic of rapid improvement in price/performance over time. The famous “Moore’s law” is that every 18 months the number of transistors per square inch on circuits will double. Many of these new exponential technologies were highlighted at the SingularityU conference held in Christchurch just over a year ago (some great resources and content including videos from that event are here). They will be the subject of the next such Singularity conference in this region which is being held in Sydney in late February – for more on that one click here.

The example of the new space law shows that there can be a relatively quick legislative response to new developments – in this case a one month consultation in May with the Act commencing in December. Increasingly, the government will need to keep an eye on developments like Bitcoin which quickly become more than just talk and instead offer new challenges to the way things have been done in the past.

In areas where there are these new emerging technologies or exponential technologies, there is now some policy and legislative catch-up to be done:

Cryptocurrency: A time traveller from even a few months ago would be shocked at the amount of print devoted to Bitcoin and cryptocurrency. The Financial Markets Authority has issued some guidance about Initial CoinOfferings and services related to cryptocurrencies. But what is still missing is more in depth analysis of how the government itself will react to a new way of trading that doesn’t really involve it in the way that traditional transactions have.
Blockchain: Sitting behind cryptocurrency is the real game changer: Blockchain technology. What are the policy and legal changes needed at a national level to deal with a decentralised network of data?
Artificial Intelligence: There are many examples but to pick one, the idea of financial advice being given by robots has resulted in consultation which started in June 2017; in October the FMA noted that it “has decided to grant an exemption to enable personalised robo-advice”. In what other fields might advice be given that will need similar changes? How about my own area, the legal industry? This is something I am watching closely as a co-founder of Active Associate, a legal-tech startup improving access to legal information through AI powered conversations.
Autonomous vehicles: These are coming, so if I am reading the newspaper (on a device of course), while my car drives me along the road when it swerves to avoid hitting a cat and kills a pedestrian, who is responsible? The Government provided the following comment in this release at the end of last year leaving the question open: “There are no obvious legal barriers to the deployment of autonomous vehicles for testing in New Zealand. Unlike some countries, NZ law has no explicit requirement for a driver to be present. However, autonomous vehicles could raise issues about who is at fault if they were to crash.”
Big Data and Privacy: Think about the last time you were asked to click “accept” on some terms and conditions – I would say the chances of actually reading the privacy provisions in those are extremely low. We are collectively giving up our privacy in exchange for convenience that apps, software and new technology provides. Does the law need to respond – or are we kind of OK with that?

Such ideas demonstrate the importance of considering again where we are, and where we want to be. The new laws around space have been introduced fairly quickly which shows what is possible. Maybe it is time that some of the other technologies mentioned above were looked at again and a proactive and world leading approach was taken to ensure their full potential can be reached here in New Zealand.

This article by Steven Moe originally appeared on The Spin Off

We have all come across disclaimers of some sort. Whether a ‘use at own risk’, ‘don’t try this at home’ or ‘check with your doctor/lawyer before acting upon this information’, the concept isn’t new to us. Yet how much can we really rely on these? At what point can people disclaim their own liability, and when do they have to take responsibility for their actions and advice?

Where do you start?

A core starting point begins with section 9 of the Fair Trading Act 1986 which disallows anyone in trade, from engaging in conduct which is misleading or deceptive or likely to mislead or deceive. If someone can show that they merely passed on the information, with no reason to believe that it was misleading or deceptive, then such a disclaimer may be relied upon.

What are some examples?

In the case of Goldsboro v Walker, Mr Oborn wished to buy a motel. He was initially declined but he tried again, but named his mother-in-law as the purchaser, and forged her signature. His solicitor, Mr Fleming, sent the agreement to the solicitors, but Mr Oborn never completed the purchase. In the Court of Appeal, Mr Oborn was found to be in breach of section 9 as he was not merely passing on the information, but represented that he was acting for the mother-in-law. It did not matter that he thought the assertion to be true.

What if you just “convey” information?

This is where the concept of passing over information comes into play. The case law suggests that if someone clearly communicates that the information they are giving has not been assessed by them, but is merely passed on, they can exclude their liability.

The Supreme Court in Red Eagle Corporation Ltd has emphasised that unless it is clear that the information has been passed on from another source, the conveyor takes the risk that the information will be understood to be personal knowledge. Informing the recipient gives them the opportunity to seek further advice and information.

Conveyors should be careful not to get involved in the information if they wish to keep the safety of the disclaimer. In Watson v Gilbert, despite putting a disclaimer in the financial information, the defendant was held to be more than a mere provider of information as he introduced the plaintiff to the investment programme and encouraged the investment.

What does that mean for us?

If you are receiving information that comes with a disclaimer, you will generally have to accept that they have distanced themselves from liability. It will be your responsibility to do further research. However if they haven’t clearly explained that the information they are giving to you has been sourced from elsewhere, and that they haven’t been involved with it i.e. edited/added to the words, included the words in their own pamphlets etc., then you may be able to consider it as personal knowledge. If the information turns out to be incorrect, then you may be able to make a claim against them.

It is also worth keeping in mind that there may be specific rules that apply to you based on the type of industry you are in. For example, Real Estate Agents are subject to rules around their conduct and it is difficult for them exclude those professional duties. If you are uncertain about what applies and what you can exclude by way of a disclaimer then we would be happy to discuss with you to clarify.

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Please contact Steven Moe at Parry Field Lawyers (348-8480) stevenmoe@parryfield.com

We are on the committee which is helping organise a conference in April at Te Papa called “Professional Perspectives on Charities Law and Regulation in New Zealand Conference”

We thought it would be good to share the details of it which are below. If of interest, please contact Steven Moe at stevenmoe@parryfield.com.

Professional Perspectives on Charities Law and Regulation
in New Zealand Conference

26 and 27 April, 2018
Te Papa Museum, Wellington, New Zealand

The conference is being organised by the Charity Law Association of Australia and New Zealand (CLAANZ), Chartered Accountants Australia and New Zealand (CAANZ) and Parry Field. Charities Services is also supporting this event.

The conference will focus on current topics of interest in fields of charity law and accounting.

The aims of the conference are to:

inform and educate on important topics for charities
strengthen links, contacts and collaboration within the sector community; and
share lessons learnt and best practice that have worked for others, both within New Zealand and beyond.

We hope that this conference will inspire action and innovation, help inform the upcoming review of the Charities Act and improve trust and confidence in the sector.

This conference will cover a range of topics of interest and importance to practitioners and others in Australia and elsewhere in the world and all are strongly encouraged to attend.

Speakers are yet to be confirmed and you can find the proposed programme here . The speakers will include leading representatives of the profession, domestic and international regulators, the academic community and charitable sector.

Registrations will open early next year

Earlybird before 28 February 2018:
– One day: $275
– Two days: $440

Pricing after 1 March 2018:
– One day: $300
– Two days: $500

There will be a conference dinner on the Thursday evening and this is an additional cost.
For more information, please email Steven Moe.

Fee Simple vs. Cross Lease

Example

Tips on things to look out for:

Professional Perspectives on Charities Law and Regulation
in New Zealand Conference

26 and 27 April, 2018
Te Papa Museum, Wellington, New Zealand

Christchurch CBD

Christchurch

Rolleston

Hokitika

Fee Simple vs. Cross Lease

Example

Tips on things to look out for:

Professional Perspectives on Charities Law and Regulation in New Zealand Conference

26 and 27 April, 2018 Te Papa Museum, Wellington, New Zealand

Christchurch CBD

Christchurch

Rolleston

Hokitika

Professional Perspectives on Charities Law and Regulation
in New Zealand Conference

26 and 27 April, 2018
Te Papa Museum, Wellington, New Zealand