Jo-Ella Sarich has been appointed Associate

Jo-Ella is an Associate in the Litigation Team practicing in the Treaty of Waitangi field, dealing with both claims before the Waitangi Tribunal and Direct Negotiations with the Crown. She also specialises in immigration applications and appeals against decisions by immigration officers.

Jo-Ella’s extensive experience with all aspects in the Treaty field allows her to provide clear and understandable goals and strategy to clients involved in this particularly challenging area of the law.

Debbie Dunbar has been appointed Associate

Debbie is an Associate in the Litigation Team with a focus on Family and Employment Law.

Debbie’s experience and expertise developed over many years means that she can achieve the best possible outcomes for clients and keep them advised and up to date in clear and simple terms.

Eve Rongo has been appointed Senior Solicitor

Eve is a Senior Solicitor in the Litigation team, working in all aspects of Waitangi Tribunal claims and litigation.

Eve has recently joined the team from the central North Island and her experience in Waitangi Tribunal claims and Maori legal issues are a benefit to the firms clients. In addition to appearing before the Waitangi Tribunal, Eve also has experience in the Environment Protection Authority and tax experience, having worked as an adjudicator at the Office of the Chief Tax Counsel.

Claire works in the Business & Personal Legal Services Team, focusing mainly on assisting clients with opportunities and challenges in Property, Trusts, Asset Protection, and Wills and Estates.

Experienced in all areas of the sale and purchase process of both residential and commercial property, Claire also advises Bodies Corporate regarding unit title issues.

James had been a Board member since 2007 and looks forward to working closely with the newly appointed Director, Christian Penny.

Toi Whakaari is New Zealand’s largest training provider for professionals in the screen and performing arts and has been doing so for more than 40 years.  It has become a name for excellence for training in acting, technology, directing, design, management and costume construction.

Trusts (including family trusts, corporate trusts and charitable trusts) are not separate legal entities, meaning the trustees enter into trust commitments and own trust property personally. Unfortunately for the Trust, the New Zealand Lottery Grants Board only provides grants over $10,000 to legal entities. This meant that the Trust was unable to apply for the grant they wanted.

Fortunately for the Trust, Charitable Trusts (and unincorporated charitable societies) can incorporate as a trust board and become a “legal entity”. This is a relatively straightforward process with several other benefits over and above being able to apply for certain grants from bodies such as the New Zealand Lottery Grants Board.

Ownership of Trust Property

Without incorporating, trustees hold trust property in their personal names on behalf of the trust, e.g. Bill Smith, Tina Brown and Michelle Jones. By comparison, trust property of incorporated trust boards is held in the name of the trust board. This can be beneficial because there is no need to worry about recording the change in legal ownership of trust property whenever trustees change.

This is particularly important if the unincorporated trust owns land, because the Land Registry Office has to be notified each time the trustees change so that the current trustees are recorded as the owners of the land.

However, an incorporated trust board is recorded as the owner of all property, including land, and the ownership records don’t have to be updated every time the trustees change.

Liability of Trustees

Without incorporating, trustees ordinarily enter into agreements and contracts personally, on behalf of the trust. This raises numerous liability concerns for trustees. On the other hand, an incorporated trust board is able to enter into contracts and is sued as a “legal entity” rather than the individual trustees. This reduces the possible personal liability of individual trustees. 

If your organisation is a Charitable Trust or you are considering establishing a charitable organisation, talk to your legal adviser about the potential benefits of becoming an incorporated trust board.

The law currently prevents an organisation from being registered as a charity if it has political purposes. The exception to this is if the political purposes are “secondary, subordinate, or incidental to a charitable purpose” and “not an independent purpose” of the organisation.

In this case, the High Court stated that the extent to which Greenpeace relies on its political activities to advance its causes “means that the political element cannot be regarded as ‘merely ancillary’ to its charitable purposes.”

This case confirmed that the Charities Commission is entitled to reject an organisation’s application for registration as a charity if that organisation undertakes political activities.

However, the High Court hinted that this area of law may be reconsidered by the Court of Appeal or Supreme Court in light of recent Australian case law. The High Court of Australia has found that political activities will not disqualify an organisation from being charitable, provided of course that those political activities further the organisation’s charitable purposes. Greenpeace may well appeal the decision to the Court of Appeal. So, watch this space …

Let’s take Sarah – she’s the Wellington Representative of a national organisation set up to assist small business owners around New Zealand. Sarah runs a small business in Wellington. At a meeting of the organisation, a proposal is tabled that will significantly benefit small businesses in Wellington. Does Sarah have a conflict of interest in this situation and is she able to participate in the discussion and vote on the matter?

First of all, it is necessary to consider what the organisation’s rules say.

Check to see how “conflict of interest” is defined. Often, the rules include a provision that a Representative will not have a conflict where that Representative’s interest is not different in kind from the interests of other members of that region. If Sarah’s organisation has a similar provision, she would not have a conflict of interest provided her interest is no different to other small business owners in Wellington. However, if there was no such provision in the rules, it is likely that she does have a conflict of interest.

It is best practice for the rules of an organisation to require Representatives to disclose their interest and the extent of the interest to the Board. It is also common to prohibit any Representative from participating in the discussion concerning, or voting on, a matter in which they are interested. Depending on how the rules are drafted a Representative may be:

1. Able to participate in the discussion about the matter in which they are interested and able to vote;
2. Able to participate in the discussion about the matter but unable to vote; or
3. Required to leave the meeting while the matter is discussed and unable to vote.

What’s best for your organisation will depend on its individual circumstances. Get advice from your lawyer if you’re not sure what conflict of interest provisions are best to include in the rules of your organisation.

If you’re uncertain if a conflict of interest has arisen – it’s best to take a conservative approach and err on the side of caution. In that situation, make sure the conflict (or possible conflict) is disclosed to the Board and follow the procedure set out in your rules.

Recently a man was unhappy with the advice his accountant provided him on his GST return.  Thinking it was the best way to raise his grievance, he issued a statutory demand.  Statutory demands can have serious consequences for companies, and should only be made when a company fails to pay you money that is correctly invoiced and overdue.  It can result in the company being declared insolvent and should definitely not be used to complain about a company’s service.

The company applied to the Court to have the statutory demand set aside.  The Court not only set aside the demand and required the man to pay the accountant company’s legal fees; but it also increased costs by 25% to compensate the company for their wasted time and expenses in setting the demand aside.

The customer could have easily avoided this by following the correct complaints mechanism.  This also illustrates the importance for companies to spell out the complaint process to their clients in writing, thus avoiding unnecessary (and expensive) headaches for all.

For more information on this or similar legal issues, call us toll free on 0800 733 424.