Business - Parry Field Lawyers

The Financial Markets Conduct Act 2013 (“FMCA”) has rules about who can invest when you are issuing debt or equity securities. The basic principle is that any issue of securities (either equity or debt) will require information to be disclosed (in a product disclosure statement) unless you fall within an exemption. A product disclosure statement provides an investor with essential information to help them weigh up the risks of investing.

There are two types of investors that fall within the exemptions:

People who know enough to already be protected e.g. wealthy enough or know the entrepreneur well enough to have sufficient access to information; or
The nature of the offer is what provides the exclusion.

These main categories are set out in schedule 1 of the FMA Act here.

Looking at each of the main categories that we see used most often:

Wholesale investors – includes wealthy or sophisticated people such as people who subscribe for more than $750k; operate an investment business; have assets or turnover of more than $5 million or if a certificate is signed that they are an eligible investor.
Close Business Associates – this category of people are able to obtain information about the company such as directors, immediate family members, people who already have more than a 5% shareholding in the company etc.
Employees – if there is a share scheme then it can be used as a category to allow shares to be issued.
Small offers – an offer to less than 20 people in 12 months and up to $2 million from personal offers can be obtained. A warning statement is needed and you must tell the FMA as well.
Crowd funding – this is another option but needs to offered through a registered platform. An aggregate limit of $2 million in the last 12 months applies and the monetary limit includes both debt and equity securities as well as any ‘small offers’.

By coming within one of these exemptions you will have less regulations to comply with. We have assisted many investors as well as founders to think through how they will fit within an exemption.

A warning needs to go on the front of documents which looks like this:

“Warning

You are being offered [name of financial product type (for example, ordinary shares)] in [name of issuer].

New Zealand law normally requires people who offer financial products to give information to investors before they invest. This requires those offering financial products to have disclosed information that is important for investors to make an informed decision.

The usual rules do not apply to this offer because it is a small offer. As a result, you may not be given all the information usually required. You will also have fewer other legal protections for this investment.

Ask questions, read all documents carefully, and seek independent financial advice before committing yourself.”

If you would like to discuss this you can contact Steven Moe stevenmoe@parryfield.com or Michael Belay michaelbelay@parryfield.com at Parry Field Lawyers.

Parry Field Lawyers is pleased to have assisted tech start-up Komodo on their recent capital raising. Komodo have successfully raised $1.8 million allowing them to provide much needed wellbeing support to students. The start-up provides a platform for students to communicate with staff and provides schools with ways to identify and address issues such as mental health and bullying.

We are proud to have supported the company on this journey for several years now right from the beginning. Their company represents an ongoing shift towards companies and investors wanting to create an impact through their work.

The transaction was led by Senior Solicitor Aislinn Molloy and Partner Steven Moe with assistance from many in the Parry Field team as well.

Chris, CEO and Founder of Komodo says this:

“From incorporation and crazy ambitious dreams, to this point of our exciting journey, Parry Field Lawyers have been superb in guiding us through an area that can be tricky for many founders to get right. The team have ensured we have done things right from the beginning and we are truly grateful for the dedication that both Aislinn & Steven, with the rest of the team, have provided.”

For more on the deal, see this article: https://techcrunch.com/2021/08/30/new-zealand-based-student-wellbeing-platform-komodo-raises-1-8m-nzd/

If you are needing advice on a start-up or capital raising please feel free to contact Steven Moe stevenmoe@parryfield.com, or Michael Belay michaelbelay@parryfield.com at Parry Field Lawyers

You have probably seen lots of articles and webinars hammering on about directors’ duties.

You are left feeling slightly depressed about the idea of becoming a director. Or maybe you are one already and wondering if it’s really worth it.

There are recurring topics when it comes to risks of being a Director. You will have heard about the Mainzeal case [1] and perhaps also Debut Homes [2]. In both cases, directors were held to be in breach of their duties under the Companies Act 1993. They were, as you probably know, pinged heavily for their failures.

Like much media reporting, the headlines can be scarier than the detail. So perhaps it’s time for some good news.

Make no mistake, recent law tells us that we need to be fully alert when carrying out our duties as directors. There is no excuse for not being well aware of the law (and if you haven’t read these cases, then at least find a good summary and get on with it.)

However the good news is that the Companies Act itself provides some relief from what some of the doom merchants are saying.

The good news starts by having a closer look at the long title of the Companies Act which says:

An Act to reform the law relating to companies, and, in particular,—

to reaffirm the value of the company as a means of achieving economic and social benefits through the aggregation of capital for productive purposes, the spreading of economic risk, and the taking of business risks; and

to provide basic and adaptable requirements for the incorporation, organisation, and operation of companies; and
to define the relationships between companies and their directors, shareholders, and creditors; and
to encourage efficient and responsible management of companies by allowing directors a wide discretion in matters of business judgment while at the same time providing protection for shareholders and creditors against the abuse of management power; and
to provide straightforward and fair procedures for realising and distributing the assets of insolvent companies.

If you look at the underlined bits, you will see that Parliament itself has affirmed the value of the company as an essential engine to carry out “economic and social” policy in our country. It accepts the taking of “business risks”. If you are a director you are allowed “a wide discretion in matters of business judgement”.

But it’s a balancing act: This policy and the latitude allowed must be held in clear tension and balance with the “protection for shareholders and creditors against the abuse of management power”.

Why is this good news? Fundamentally, it gives a strong direction to Courts to allow for sensible business risk. But at the same time it strongly indicates what is not sensible. It prescribes boundaries, beyond which you as a director ought not to go. If you are in danger of heading over a boundary line, then you will have some clear choices to make.

The comfort this gives is that it will ensure that Courts are not quick to find small discrepancies and whack the directors too readily – otherwise the fundamental purpose of the Act is undermined and a major policy for the successful operation of business and social enterprise is undermined. There is and must be scope for risk taking.

What are the reasonable limits to the scope of risk?

Now this is where it might get a bit dull, but it is important.

Solvency is the issue – the touchstone.

Section 4 of the Act sets out two types of solvency:

Trading solvency – the requirement that the company is able to pay its debts as they become due in the normal course of business;
Balance sheet solvency – the requirement that the value of the company’s assets must be greater than the value of its liabilities, including contingent liabilities.

You as a director must have a “sober assessment” on an ongoing basis as to the company’s likely future income and prospects. Not all directors are financially minded or trained (some are there for other skills). Such directors need to make sure they are getting reliable and current summaries from those who are financially literate.

The three key duties that you have as a director are:

You must act in good faith in what you believe to be the best interest of the company (section 131);
You must not agree to cause or allow the company’s business to be carried on in a manner that is likely to create a substantial risk of serious loss to the company’s creditors (section 135);
You must not agree to the company incurring an obligation unless you believe at that time, on reasonable grounds that the company will perform the obligation when it is required to do so (section 136).

In a nutshell here is what the Act is trying to put the brakes on:

Directors making decisions (or avoiding decisions) that are likely to result in people beyond the shareholders suffering loss e.g. creditors. Its one thing for the company to put its own funds at risk (including shareholders contributions), but it’s quite another for the company to begin to put third parties at risk. The law may accept the former as a reasonable “business risk”. But it may view the latter as an “abuse of management power”.
Directors making decisions to avoid their own personal guarantees being called on. As a director you may have entered into a personal guarantee to support the company borrowings or other commitments e.g., a lease. Again the law takes a dim view of any action you take as a director which is more about you protecting your guarantee and less about protecting third party creditors or even shareholders.

If you are facing a doubtful situation what should you do?

Resign? That may be your only option. Merely voting against a dodgy proposition may not be enough in the longer term. Raising issues at a board level and giving the board a reasonable time to change its stance may be a reasonable position. However if the company continues to sail on into troubled waters, contrary to your views, then you must act.
Trigger insolvency regimes? That may well be the alternative to the above but is fairly rarely done by directors in New Zealand. It is more common to hear the view that a director continued on the board in the hope of “rescuing” its direction. Again, this is a doubtful strategy.

Directors’ and Officers’ liability insurance.

This sort of insurance is highly advisable for most trading companies. (You can’t have any such insurance if you don’t have a constitution – this is discussed more here).

As a director you may be well aware that you have a policy and may even know what the total cover is. But are you aware of other essential details such as:

The notice provisions and how soon the insurer must be notified for the policy to be effective?
Whether the defence costs under that policy are adequate in today’s climate? In particular make sure the defence costs, of any action that you are relying on, are separate from the liability costs – something that some directors have in the past found out wasn’t applicable – to their considerable cost.
What is covered and what is not? This seems obvious, but finding out after an insurable event arises, is not the best time to become more acquainted with your policy.

Conclusions

Company law accepts that business risk is a reality. The Company structure permits a certain degree of freedom;
Balanced with that, the same law guards against over extending the use of that freedom to trade with other people’s money and not just your own company’s, or to be trading in a way that is more with an eye to protecting your own personal interests (e.g. personal guarantee protection) than that of the company and its creditors;
So you should take all reasonable steps to be alert and knowledgeable about your company’s financial position and prognosis, put in place appropriate insurance and have the courage to take appropriate steps when you think the company is getting into difficulty.
Being a director can be a valuable contribution to our country’s economic and social well- being. Don’t be put off by the headlines only. Make your decision to ‘sign up’ based on a bit of solid research-and if you do become a director, maintain that approach throughout.

We have a lot of experience helping Directors, Boards and Companies – if there is something you would like to discuss then let us know.

DISCLAIMER: This article is of a general nature and cannot be relied on as specific legal advice. If you are thinking about becoming a director, or are a director facing a difficult decision, you should take advice specific to your fact situation.

[1] Yan v Mainzeal Property and Construction Limited (in liquidation) [2021] NZCA 99.

[2] Debut Homes Limited (in liquidation) v Cooper [2020] NZSC 100.

Entering into agreement and contracts is a crucial part of business. It is important to ensure that these transactions take place without hiccups, as disputes in contract can be costly, time consuming and damage relationships. In our line of work, we see similarities in the hurdles that trip people up when they are entering into contracts. To help with this we have created this list of 7 useful tips to assist and point out the hurdles to avoid when entering into contractual agreements.

Contract Formation

The basics required for the formations of a contract are: Offer, Consideration (usually money) and Acceptance. If those exist a contract may be in place – even if it is not written down.
Make sure you receive a signed copy of the final version of the contract. We often see issues arising where one party signs and send the contract to the other party, on the understanding that the contract is finalised, but the other party makes further changes before signing or doesn’t sign the contract at all.
It is essential to ensure you receive a finalised contract which is signed by all parties/ which incorporates all agreed changes.

Record Keeping

Save important emails, relevant folders, keeping written records of conversations (follow up email recording what was agreed; meeting minutes etc).
Tailor a system that works for you personally, works for your team and your organisation. Be disciplined and stick to it, making sure the process is clear and being followed by all relevant people.
Take time to review your process every now and again, to ensure they are still fit for purpose.
There are some legislative and contractual requirements for documents and records that must be kept for a specified time. Know your obligations and abide by them.

Language

If you have a few people in your business who enter into contracts for your business then when they are sending an email or making a phone call they have the potential to commit your business to something.
If that’s you, ensure that you do not use language that can commit the business to transactions unless you are 100% sure that what you are doing is acceptable, and achievable. To avoid this use “less binding” phrases that do not commit the company, i.e.
- “I will seek instructions”
- “I will confirm in writing”
- “I will talk to the leadership team and confirm”

Good Faith Transactions

While it is important to maintain good relationship it is hard, expensive and time consuming to get money back once it is paid, so if you are making a payment make sure there is an agreement in place.
To ensure a smooth transaction it is good practice to keep a record of the circumstances of good faith payment with an emphasis on recording when it would be repaid if no agreement was reached.

Variations

Changes to contracts are common practice in business. Variations offer much needed flexibility to agreements and allow contracts to be useful even in changing circumstances. However, poorly managed variations can present more bad than good. Poorly managed variation can be time consuming, expensive and strain the relationship between parties. They can result in misunderstanding or confusion between the parties or end up in lengthy and costly litigation.

Practical Tips:

Ask whether a variation to the contract is necessary, or if it can be dealt with some other way.
Check the processes for variation in agreements.
Clearly specify the terms of the contract that are being varied.
Consider the flow on effects on other clauses.
Minimise as much as possible oral variations and if they occur, record them in writing.

Reviewing Documents

If contract documents are not standard, are new/unfamiliar, have substantial variations to them, or carry the potential for increased liability, we recommend having the documents reviewed. Reviews might be internal, with a colleague or supervisor, or you could let a lawyer review documents.
Make sure you give the person reviewing the documents all relevant paperwork (the full contract) etc; so they can ensure consistency and understand the context when they review.

Confidentiality

Have a system in place to ensure confidentiality is kept and there is a process for dealing with breaches, as they may occur.
Make sure documents are marked as confidential.
When sending sensitive emails, double check who you are sending to and who is copied in to the email. Check long email chains for sensitive material.
Check your legal and contractual requirements. Are their specific requirements in your contracts to keep material confidential, or are there individuals you have to notify if there is a breach?

We hope that these tips are helpful in your negotiation of contracts. If you’d like to discuss then our team of experts would be happy to do so.

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact Steven Moe – stevenmoe@parryfield.com, Michael Belay – michaelbelay@parryfield.com at Parry Field Lawyers

As part of privacy week 2021 it was great to hear from the Privacy Commissioner, John Edwards and we would like to thank him for his time. The video is below. We hope it helps demystify and answer question you might have had regarding privacy and the new Act.

We had a great turn out of around 70, in person as well as over zoom, and we appreciate all of those questions which helped facilitate a great discussion

The slides from the presentation can be accessed here
Some resources mentioned can be accessed here from the Privacy Commissioner website; and
We put up articles, free guides for charities and social enterprises, templates, videos and more on our website under the resource tab at parryfield.com

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact Steven Moe – stevenmoe@parryfield.com, or Michael Belay – michaelbelay@parryfield.com at Parry Field Lawyers.

If you have a successful business then chances are one way to grow it could be through Franchising.

In this article we want to cover some of the key points that you need to know if you want to head down that path.

Franchising is a good alternative to consider because it can increase your brand recognition and you provide oversight while not actually running the branch. However, you can still benefit from payments and the exposure that a growing brand creates.

So what do you need to consider?

In helping our clients franchise we work closely to look at the following – working through these points below we would then put into a Franchise Agreement and Manual. Your answers will likely depend on the amount of control you want to have over the Franchisee’s business. The Manual will outline the rules and guidelines for operating a Franchisee Business. What you need to think through is the following:

The Territory the Franchisee can act in (eg. Canterbury vs Ashburton)
Opening hours
Advertising
- Who is responsible for doing this
- How will it to be done
- National or regional level?
Training course
- Additional/on-going training?
Number of employees
- Roles – Manager etc.
Minimum sales/performance criteria required for Franchisor to terminate agreement or revise territory
Inventory and supply specifications
Reporting
- How often?
- What form?
Grounds for terminating the Franchise agreement
Restraint of Trade terms (e.g. relating to termination, territory, goodwill etc.)
Insurance cover
Set up
- Conversions/Alterations/renovations required to initially set up premises
- Plans/drawings/specifications of the premises
- Fixtures, fittings etc.
- Initial stock required
- Initial advertising required
- Initial equipment provided by Franchisor
Continuing obligations
- How often will franchisor consult with Franchisee
- How will performance be monitored
- How will records be kept
- Code of Practice? (if member of Franchise Association of New Zealand)
Suppliers/Key Contracts needed
Stationery
Leases
Requirements for where shops are located
Intellectual Property – this will include considering:
- Exactly what the Company has as IP
- Whether trade marks are registered
- How trade marks can be used
- Licenses that may be in place
- Providing clear brand guidelines

Franchising is a definite option for a growing business.

If you would like input on franchising then we would be happy to provide you with input through an initial conversation about what you want to achieve. To discuss this or for further enquires please contact Steven Moe at stevenmoe@parryfield.com or Kris Morrison at krismorrison@parryfield.com

You might also appreciate our guides such as the Doing Business in New Zealand guide and the Start-ups Legal Toolkit. We also provide free templates for resolutions, Non Disclosure Agreements and other resources on our site as well as many articles on key topics you should know about.

Charities can be a powerful vehicle for bringing change. We have been fortunate to have helped and worked with many clients in this space and can testify to the positive impact they can produce. Given our experience with charities we have produced a handbook on Charities in New Zealand. You can download it here.

The handbook is intended to serve as a practical guide to help start-ups and existing charities from a legal and practical perspective. It is divided into several key sections and provides information on establishing your charity, operating your charity and much more.

If you have further enquires please contact Steven Moe at stevenmoe@parryfield.com or on 021 761 292 or Kris Morrison at krismorrison@parryfield.com.

Be sure to check out our other free guides too, such as Startups: Legal Toolkit and Social Enterprises in New Zealand: A Legal Handbook. We also provide free templates for resolutions, Non Disclosure Agreements and other resources on our site as well as many articles on key topics you should know about.

Business can be complicated but it doesn’t have to be. We have helped thousands of clients and know about the key legal areas that will affect you and have just released our fully revised and updated “Doing Business in New Zealand” free handbook. You can download it here.

New Zealand consistently ranks as one of the most business-friendly nations in the world. Given this appealing status and the interest we receive both from local and international investors, as well as form businesses and entrepreneurs, we produced the “Doing Business in New Zealand” handbook a few years ago and now have fully updated it. It is intended to introduce and provide information for those who may be unfamiliar with how business is done here. The handbook provides introduction on business structures, investment rules, employment, disputes, property, intellectual property, immigration, privacy and social enterprise, just to name a few examples.

If you have further enquires please contact Steven Moe at stevenmoe@parryfield.com or on 021 761 292 or Kris Morrison at krismorrison@parryfield.com.

Be sure to check out our other free guides too, such as Startups: Legal Toolkit and Social Enterprises in New Zealand: A Legal Handbook. We also provide free templates for resolutions, Non Disclosure Agreements and other resources on our site as well as many articles on key topics you should know about.

Trustees frequently ask us whether they would be personally liable if someone is injured on a course run by a trust where they are a trustee. For example, imagine a youth focussed trust and they employ Jane, she takes a group of children on a hiking trip. During this a child is injured in an accident. Could the parents of the child make a claim against the trust or even the trustees personally? Let’s look at what could happen in New Zealand.

The role of ACC

The accident to the child would most likely be covered by the Accident and Compensation Act 2001 as a personal injury. This means that the parents would be prohibited from bringing independent proceedings against the trust and the trustees. Therefore, trustees are protected from third party claims relating to accidental personal injury where ACC would cover the accident. For more on this see ACC’s guidance here. This would not be the case in other countries where a claim might be possible.

What about WorkSafe?

Trustees may have proceeding brought against them by WorkSafe New Zealand if they find that the trustees breached the Health and Safety at Work Act 2015. This is because the trustees are ultimately in control. WorkSafe may pursue action against trustees if they find the trust failed to ensure, so far as was reasonably practicable, the health and safety of workers and others, such as those attending courses they organise. For example, in 2017, WorkSafe accepted an enforceable undertaking from a Trust Board following its investigation into an accident in which students were injured during a school production. The accident occurred during Saint Kentigern School’s performance of Sweeney Todd when two students were hospitalized after their necks were slit with a sharp shaving razor which was wrapped in duct tape. Despite the numerous incidents there was a failure to report and investigate these incidents. WorkSafe launched an investigation into the incident and concluded that the school failed in its duty to students and the school Trust Board accepted these findings.

Conclusion

Trustees may be liable if they are found to have breached their duties to ensure the health and safety of those they are responsible for. For more on these issues and the Health and Safety at Work Act 2015, as it applied to PCBU’s (a person conducting a business or undertaking) see our article here. Ultimately it may be wise for trusts to get a specialist Health and Safety advisor to provide guidance in this area.

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation. We would be happy to assist you, please feel free to contact Steven Moe stevenmoe@parryfield.com

There is often confusion over Health and Safety – the rules have been around for a while now but we still get some common questions. Below we set out some of the key points to consider to ensure compliance around volunteers. Check out our other guidance on these topics as well.

Is your organisation a PCBU?

Under the The Health and Safety at Work Act 2015, a PCBU has the primary duty to ensure the health and safety of its workers and others, so far as is reasonably practicable.

Reasonably practicable means that “which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety.” A PCBU is not expected to guarantee the health of safety of their workers but they must do what can reasonably be done to ensure health and safety. Factors that will affect what is reasonably able to be done include:

The hazards and risks associated with the work and the likelihood of the hazard or risk occurring;
The severity of the injury or harm to health that could result from the hazard or risk;
What the person knows or reasonably should know about the hazard or risk and the ways of eliminating or minimising it;
What can be done to eliminate or minimise the risks and how available and suitable these risk controls may be;
The cost associated with eliminating or minimising the risk, including whether it is grossly disproportionate to the risk.

What about Volunteer organisations?

Section 17 of the Act states a “volunteer association” is not a PCBU. The Act defines a volunteer association as “a group of volunteers (whether incorporated or unincorporated) working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association”.

If your organisation has no employees then it will be known as a volunteer association under the Act. As a volunteer association your organisation would not be a PCBU and therefore the Act would not apply to your organisation. However, frequently this exemption would not apply to organisations.

If your organisation has one or more employees then it is likely it will be a PCBU and thus the Act will apply.

If your organisation is a PCBU

If your organisation is a PCBU, it will have a duty to ensure the health and safety of others so far as is reasonably practicable.

So what about Volunteer officers?

Officers have a duty to exercise due diligence to ensure the PCBU complies with its duties and obligations under the Act. In exercising due diligence, officers must take reasonable steps to:

Know about work health and safety matters;
Gain an understanding of the operations of the PCBU and the hazards and risks associated with those operations;
Ensure the PCBU has appropriate resources and processes to eliminate or minimise risks;
Ensure the PCBU receives information about incidents, hazards and risks;
Ensure there are processes for the PCBU to comply with the Act.

Volunteer workers

Under the Act a “volunteer worker” is a volunteer who carries out work in any capacity for a PCBU on a regular basis, with the PCBU’s knowledge and consent and is integral to the PCBU’s operations. A PCBU would owe a duty to ensure, so far as is reasonable practicable, the health and safety of volunteer workers.

The volunteer worker would also have duties under the Act. While at work they must:

Take reasonable care for his or her own health and safety;
Take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons;
Comply, as far as the worker is reasonably able, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with the act or regulations; and
Co-operate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.

“While at work” is not defined but likely means while at the workplace or at an event run by the PCBU.

Casual volunteers

A volunteer is not a “volunteer worker” if their voluntary work includes:

Participating in a fund-raising activity;
Assisting with sports or recreation for an educational institute, sports club or recreation club;
Assisting with activities for an educational institution outside the premises of the educational institution; or
Providing care for another person in the volunteer’s home.

Even though this volunteer would not be a volunteer worker, the PCBU would still have a duty to them to ensure their health and safety is not put at risk from the PCBU’s work.

The casual volunteer would not have duties under the Act.

If your organisation is a PCBU and something goes wrong the penalties can be high. It is therefore very important that you are aware of whether your organisation is a PCBU or not. In some cases this may be unclear. We would be more than happy to talk with you about your particular situation to help you determine whether or not you are a PCBU.

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation. Please feel free to contact Steven Moe at stevenmoe@parryfield.com

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