Canterbury tales
Canterbury Westland Branch New Zealand Law Society
July 2015, Vol. 21, No. 6
Peter O’Donnell honoured
with special Court sitting
By Carolyn Browne
On Friday 10 July, the Family Court
had a special sitting to mark the
retirement of Peter O’Donnell,
one of Christchurch’s most
experienced family lawyers.
The sitting was presided over by Judge Walsh,
with Justice Nation of the High Court and 12
other District Court judges, from three
different jurisdictions, in attendance, including
retired Judges Costigan and Kean.
The out-of-town judges in attendance were
Judge Collin from Hamilton (until recently a
contemporary of Peter at the Christchurch
Family Court bar), Judge Hinton (of the
Employment Court at North Shore) and Judge
Dwyer (of the Environment Cour t at
Wellington), friends of Peter and his former
flat-mates during their days at Law School at
Canterbury.
As well as Peter, his wife Judy and a number
of their family, the sitting was attended by
Pip Hall QC and a hundred or so of Peter’s
colleagues, as well as several Family Court
staff.
Judge Murfitt spoke on behalf of the Judiciary,
acknowledging Peter as a model of good
advocacy for parents and children in the
Family Court.
Isabel Mitchell spoke on behalf of the
profession, and referred to the regard in which
Peter is held for his work across the Family
Court jurisdiction, and particularly for his work
as Lawyer for Child in many difficult cases.
Peter responded by expressing his gratitude
(and surprise) at being the subject of the
special sitting, and he acknowledged that
illness has required an earlier retirement than
he had planned. His illness has begun to
affect his voice (the resonance of his voice
in Court being a characteristic for which he is
well-known) and his handwriting, and he
Peter O’Donnell and his wife Judy. More photos page 10.
conceded that both were attributes essential
to a barrister’s work.
As well as some entertaining reminiscences,
Peter expressed his gratitude to members of
the Judiciary, the profession and the Family
Court staff, and acknowledged the important
role of his wife Judy in his life, in raising their
family — and, more recently, as practice
manager and support person in his chambers.
Peter and Judy have one grandchild in Ireland,
and will have two more grandchildren by the
end of the year, when their family, with all
three grandchildren, will be celebrating a New
Zealand Christmas.
They also plan travel to Ireland again next
year. Following the special sitting, many of
those in attendance joined Peter at The Bog
Irish bar, a favourite spot of his, where bar
staff presented him with a Guinness cake to
mark his retirement.
22
Canterbury
Canterburytales
tales
Vino Fino
Photo Caption
Each month we have a photo caption
competition where we invite you to submit a
caption. The winner will receive two bottles of
wine sponsored by Vino Fino (www.vinifinoco.nz,
188 Durham Street). Send your entry to the
Canterbury Westland Branch New Zealand Law
Society, P. O. Box 565, Christchurch. Or email
to [email protected]. All
entries must be received by August 9 2015.
The winner will be announced in the next
edition of Canterbury Tales.
The winning entry for last month’s picture
(below) was submitted by Kelley Burley.
“Rupert the Bear was very excited to be
attending his first ballet class. He’d already
mastered first position.”
President’s Column
Dear Colleagues,
In the grip of surprisingly cold spells which have
more of an impact on the mature members of
the profession we still have a lot of cheerful
moments to encourage us.
One such cheerful moment was the swearing
in ceremony of Justice Davidson at the High
Court in Christchurch. This well attended
ceremony was important for the profession.
For the second time in about as many months
the Attorney General attended a swearing in,
in person. This clearly demonstrates the real
appreciation by the Attorney of the significance
of those being sworn in and also the respect
he has for the profession in Canterbury.
Justice Davidson remedied any lack of humour
in other speeches by delivering an interesting
and entertaining response. It is interesting to
note the comments and information about yet
another Canterbury practitioner. This was not
“a movie version” of a career but a solid history
of commitment and service to the profession
and the community we serve.
It is also cheerful news that Judge Harrison has
been appointed as a District Court Judge.
Although said to come from Dunedin, she is a
Canterbury woman, we make the claim that
the profession in Canterbury are responsible
for providing her with all that was necessary to
achieve her appointment. Her swearing in
ceremony is to be held in Dunedin on the 20th
of August 2015.
After wading through some voluminous Court
documents and swamp like correspondence I
have recalled a very interesting letter written
by his Honour Judge Erber when he was
practicing at Weston Ward & Lascelles a number
of decades ago.
At that time I was “learning the ropes” at the
firm of Parry & Field (as it was then). Mr Field
of that firm was acting for parties who were in
dispute with clients of Judge Erber. Mr Field
had written a lengthy proposal to Judge Erber
which he thought would go a long way to
reaching a settlement of the matter.
The proposal was prefaced with the words
“would your clients consider the following”.
Within 24 hours a response letter was received
as follows:
Messer’s Parry & Field
Christchurch
Dear Sirs,
Re: The AB Dispute
No!
Yours faithfully,
Weston Ward & Lascelles
The effects of that letter on Mr Field could have
been the adoption of a view that this was
patently unhelpful however that was not the
case. Mr Field who was a man with an
exceptionally well-furnished mind and
significant literary skills applauded Judge Erber’s
response.
In Mr Field’s view not only was the word more
meaningful than anything else that could be
said but also his view was that there is no other
word with two letters in the English language
that could be used to convey Judge Erber’s
client’s position. That letter was spoken of often
by Mr Field. He was never able to refer to it
without a beaming face and a chuckle.
Until next time.
Colin Eason
New judge
Congratulations to Justice Davidson,
above, on his appointment as a High
Court judge.
A winter lament
Song of the [Cold and] Open Road
(with apologies to Ogden Nash)
I wonder if again I’ll see
Verandahs in the CBD
Perhaps, unless the buildings rise,
This weather shall bring my demise.
Carolyn Browne
Canterbury tales
3
The Canterbury branch complaints team of Sandy Hopkin, Zylpha Kovacs, Malcolm Ellis and Valerie McTurk. Collectively they have
more than 70 years experience in Law Society matters.
Responding to a complaint
The initial contact with the Lawyers’
Complaints Service for many
people is via the nation-wide 0800
line.
This service is required under Section 6(3) of
the Lawyers and Conveyancers Act (Lawyers:
Complaints Service and Standards
Committees) Regulations 2008. It is well
advertised on the NZLS website, and in a NZLS
brochure about the Lawyers Complaints Service
and may appear in lawyers’ client care
information.
For those dialing 0800 261 801, the most likely
person to answer the call is Zylpha Kovacs, an
enrolled barrister and solicitor, based at the
offices of the Canterbury-Westland Branch of
the NZLS. Zylpha, whose work covers a number
of roles including editing Canterbury Tales, says
there are around 60 or 70 calls per week.
“Most are members of the public who have a
query about making a complaint,” she says.
“Some have not spoken about the complaint
with their lawyer, while others have done so
but have not been satisfied with the response.
We explain the complaints process to them and
talk them through the issues.”
“We try to steer them back towards talking with
their lawyer where possible. All law firms, big
or small, must have their own in-house process
for dealing with complaints and we suggest
strategies and questions they can ask. Often
that is all that is required because we do not
hear from them again.”
This is the second part of an
article on the NZLS Complaints
process. The first part appeared
last month and there will be a
third article next month
If after the first call the complainant cannot
resolve the complaint to their satisfaction,
Zylpha will point them to the NZLS web site
from where they can download a complaint
form, or if that is not possible, she will send
them a form in the mail. Once a formal
complaint is made it is received centrally where
it is first triaged for suitability for the Early
Resolution Service.
Malcolm Ellis, who is the NZLS Deputy
Complaints Manager and Canterbury Westland
Branch Manager and who works out of the
same office as Zylpha, says the 0800 number
was centralised to Christchurch from February
2014 to ensure a consistent message and to
enable training and expertise to be built up in
how to answer the calls.
“Previously calls went all over the country and
were answered by local Legal Standards
Officers. Often callers just need reassurance
and, as Zylpha has said, we reflect them back
to the lawyer armed with some questions which
often seems to do the trick.”
Malcolm says that lawyers also use the 0800
service from time to time. “Sometimes they
have seen something they think is
questionable, sometimes they are looking for
help. If they are under stress and on the
receiving end of a complaint they may seek
guidance. We try to help as best we can,
perhaps putting them in touch with the Panel
of Friends. Receiving a complaint can be very
stressful for a lawyer and this is acknowledged.”
Zylpha works four days a week and takes most
of the 0800 calls with back up during busy
times from Malcolm and other members of
the office, Valerie McTurk and Sandy Hopkin.
Between Sandy, Valerie and Malcolm they share
around 70 plus years of experience dealing with
Law Society matters.
Despite having to respond to the occasional
angry caller using intemperate language Zylpha
says she enjoys the work. “It feels like a very
worthwhile thing to do — it’s good to be able
to help people.”
Reprinted from Council Brief
A1 Book Restorer
Darren Rigden, Craftsman
Restoration/Binding Specialist
NZLS & MOJ Endorsed
Ph 981-2275 or 027 671-4440
[email protected]
www.a1bookrestorer.com
24
Canterbury
Canterburytales
tales
CASE STUDY
Younger lawyers take
action, make progress
By Andrew Nuttall
Director, Bradley Nuttall Ltd
I am now much closer to 60 than
50, and at times have been guilty
of viewing younger generations as
spendthrifts!
They appear to have travelled more at an
earlier age than us baby boomers, they buy
their lunch, eat out frequently and want all
the mod cons. At times, I find myself feeling
concerned about the strength of the balance
sheets of some younger lawyers in their late
20s and 30s.
The challenges they face are not the same as
when my wife and I were first married. In the
early 1980s there were no student loans and
the average house price in Christchurch was
approximately 3 1/2 times the average wage.
It only took us about three years to save a
40% deposit for our first home. The average
house price in Christchurch is now 5.7 times
the average wage and it would take much
longer to save a 40% deposit.
A number of senior lawyers have also
expressed concern about the financial position
of some of their younger colleagues but there
are pathways to success from different starting
positions.
Has your client considered
including a charity in their will?
Please give them the opportunity
to leave a legacy to St John that will
provide a vital service to benefit their
community.
Email [email protected]
or call the Legacy Coordinator
South Island Region for
further information:
03 353 7110 ext 3238
We have recently been working with two
lawyers in their early 30s who came to us
feeling unconfident and to some extent
concerned about their finances. It was
refreshing, however, to see how focused and
aware they were of the need to get their
finances in order.
They had some ideas in mind and both had
recently paid off their student loans. They both
owned, along with their banks, sensible first
homes. One had been able to gain entry into
the housing market via a partnership with one
of their siblings. They were well organised,
had property sharing agreements, updated
wills and had made sensible motor vehicle
purchases.
They had also enjoyed some overseas travel
but were a little uncertain of what to do next.
Both wanted to ensure that they did not fritter
their money and wanted an independent
opinion on how to do the best for themselves.
By setting aside 90 minutes we identified a
number of areas to work on and established
some priorities.
The first step was to create some structure to
help them be a little more disciplined with
their finances so they could achieve what they
wanted to. They both set up three separate
bank accounts to ensured that every payday
money was allocated automatically to; weekly
expenditure, fixed monthly expenditure (e.g.
rates, phone, mortgage repayments and
insurances etc.) and personal spending for the
fun things in life (e.g. clothes, car update and
travel).
This might seem like a very basic thing to do,
but taking this one positive step lead to other
more important things. By looking forwards,
not backwards, and reflecting and focusing on
progress both lawyers now have an improved
understanding of their financial position and
are motivated to set themselves new
challenges, personally, financially and
professionally. They have a clearer sense of
direction and greater confidence about their
futures.
I think it is a human tendency to dwell too
much on the past or to become dissatisfied
about our current circumstances. But by taking,
achievable, positive steps we can focus on
progress rather than an unobtainable
perfection. Making progress helps build our
confidence which in turn gives us more energy
to take future next steps.
We are very interested in helping lawyers with
their financial planning and if there are any
under 30s out there who would like a no
obligation planning session, please feel free
to make contact.
In our next article, we will outline a case study
of a lawyer who has a sufficiently strong
financial balance sheet to provide them and
their family with a wide range of choices and
options.
Andrew Nuttall is an Authorised Financial
Adviser at Bradley Nuttall Ltd. Phone 3649119. www.bnl.co.nz. His disclosure
statement is available on request and free
of charge.
Canterbury tales
5
Contributory mortgages — FMCA
By Beatrix Chin
Peer-to-Peer Lending (P2P) and
Managed Investment Schemes (MIS)
Lawyers offering contributory
mortgages under the current
Securities Act (Contributory
Mortgage — Solicitors and
Incorporated Law Firms) Exemption
Notice 2013 will be subject to new
requirements rolling in on 30
September 2016 when the lawyer
Exemption Notice expires.
Under the FMCA, there are no specific
provisions relating to contributory mortgages
and a law firm offering contributory mortgage
services will be treated as a financial broker,
required to proffer financial market services
under an FMCA category. They will likely be seen
to be operating either under the FMCA’s
“Managed Investment Schemes” (MIS) category
or the Peer-to-Peer Lending (P2P Lending)
category.
Briefly, MIS are schemes whereby the MIS
Manager pools money contributed to the
scheme by investors as consideration to acquire
interests (financial benefits) produced under the
scheme.
“Regulated offers” under MIS will require
disclosure and governance as prescribed for MIS
and a licensed fund manager as well as an
independent licensed supervisor. P2P Lending
involves the facilitator acting as an intermediary
between borrowers and lenders. Under this
scheme, a licence is required if you want to
match borrowers wishing to offer debt securities
without supplying a product disclosure
statement (PDS) with lenders wishing to loan
money.
Borrowers can then rely on an FMCA exemption
which does not mandate a PDS. To obtain a
P2P Lending licence, minimum standards need
to be met. Once granted, there are numerous
ongoing obligations such as complying with fair
dealing policies, having a written agreement with
clients, providing disclosure statements and
monitoring ongoing compliance. Further, the
applicant will have to demonstrate that it is able
to meet the standard conditions that are
All affected law firms should by now be
registered as a Financial Service Provider and
be a member of an approved Financial Dispute
Resolution Scheme in order to be Securities
Act compliant.
Upon expiry of the lawyer Exemption Notice,
the NZLS, which provides lawyers with a
separate compliance regime, will cease to
regulate lawyers operating contributory
mortgage lending services and the Financial
Markets Authority (FMA) will take over the
supervision of all contributory mortgage
providers under its new Financial Market
Conduct Act 2013 (FMCA) regime.
Transitional provisions
Under clauses 7 and 53 of Schedule 4 FMCA,
new offers and existing contributory mortgage
investments can, before the Exemption Notice
expires on 30 September 2016, continue to
be governed by the former NZLS regime unless the law firm elects to come under the
new FMCA regime earlier.
However from 1 October 2016 to 30
November 2016, all contributory mortgages
must be offered and managed under the
Securities Act (Contributory Mortgage)
Regulations 1988 (SA Regulations) (which
apply to brokers who are not lawyers), unless
the investments are already being managed
under the new FMCA.
From 1 October 2016, regardless of whether
lending services are offered under the Securities
Act Regulations or under the new FMCA regime,
the FMA will supervise all contributory mortgage
providers.
The new FMCA regime
Finally, from 1 December 2016, ALL new offers
of contributory mortgages must be compliant
with the new FMCA regime. New FMCA
ongoing obligations such as disclosure and
governance requirements need to be complied
with.
Note however, notwithstanding the
commencement of the new FMCA regime,
existing contributory mortgages issued before
1 December 2016 can continue to be
managed under the SA Regulations until they
are cancelled, redeemed, forfeited or the
obligations under them are discharged.
attached to the P2P licence. Similar obligations
apply to licensed MIS managers.
Options going forward
Post 30 September 2016, law firms can:
* Operate under the SA Regulations;
* Re-offer contributory mortgages under the
new FMCA regime; or
* Cease contributory mortgage lending
operations completely.
In considering the way forward, note that if a
law firm chooses to manage existing
contributory mortgages under the SA
Regulations instead of opting to operate straight
under the new FMCA, then it would have to
comply with two separate compliance regimes
come 1 December 2016 when all new
financial services are required to be offered
under the FMCA. Further, until the firm ceased
to operate under the SA Regulations, the law
firm would need to register as a contributory
mortgage broker and comply with the
obligations imposed by the SA Regulations.
Law firms that do not wish to wind down their
lawyers nominee companies and instead
intend to operate under the new FMCA regime
should be vigilant about the amount of
preparation and time involved in transitioning
and organising the firm’s procedures to ensure
compliance with the new regime and
adherence to the professional fiduciary duty
and duty of care to the lender.
The NZLS may provide further specific
guidance to law firms once more detailed
requirements about ongoing transitional
arrangements are received from the FMA. In
the meantime any enquiries or requests for
updates should be directed to the FMA at
www.fma.govt.nz.
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• Have they been provided with all of the costs?
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26
Canterbury
Canterburytales
tales
Long time legal execu
By Ann Maria Buckley
Mary Stephenson is retiring at the
end of the month after working
for Cavell Leitch for 38 years as a
legal executive. I met with her
recently to talk about her career.
My husband and I emigrated from Scotland
to join family. We loved New Zealand straight
away and Laurie was ecstatic when he
discovered how cheap it was compared to
Scotland to buy a fishing licence – we never
looked back. It was not too long before we
started our family. We have one son now
aged 34.
Tell us a little about when you started at
Cavell Leitch and the changes you have
seen over the years?
I started in 1977 and worked two months
for Mike Sweeney and thereafter with Jim
Keegan. When I started with Cavell Leitch
they had offices in Manchester Street —
although I have never really accepted the
open plan concept today, funnily enough it
was open plan in the Manchester Street
office, i.e. the secretaries and legal executives
sat in the same room space. We never
thought anything of it. Almost everyone in
the office smoked in those days and we
worked under a haze of smoke.
Ladies could not wear trousers to the office
and God help the guy who came in without
a tie.
All trust accounting was done manually with
a large mechanical bookkeeping machine
which made such a huge noise it had its
own room. We had a large nominee lending
company and as you can imagine the
paperwork was overwhelming.
Settlements were face-to-face and all done
using trust account cheques. To settle a sale
it took anything from one to two hours
depending on where you had to go to settle,
what banks you had to visit to repay
mortgages and particularly how BIG the
queue was at each destination. The client
usually had to wait three business days
before getting their hands on the sale
proceeds.
Technology has made settlements much
easier, clean cut and the ability to settle a
transaction online has dramatically changed
how we operated in the “good old days”.
I remember my first settlement — it was with
Cran Bull of Saunders & Co and I was scared;
I checked and re checked that I had all the
right papers before I wandered over to his
office — oops I had forgotten to get my
cheque signed, but Cran was wonderful to
deal with, and made the process pleasant,
although I had to go running back to the
office to get the cheque signed. Thank you
Cran.
All firms had a search clerk. This is the person
who walked, and often had to run over to
the land office sometimes three of four times
a day to search titles. You had to queue up
in a long line to get a search copy of a title,
and if you wanted to get a copy of any
memorial thereon you had to go back to
the end of the queue and start again.
How has the role of women changed
during your career?
When I started at CLPB in the late 70s there
were no female solicitors employed at Cavell
Leitch. In the early 80s Celia Barker was
employed and the female staff were elated
that we were probably one of the first law
firms to employ a female lawyer.
Over the years more and more females made
law their career of choice and this can be seen
now with the number of female solicitors being
appointed partners within the profession. In my
opinion the increase in female solicitors, as well
as bringing more equality for women, brings
more diversity into the work place. What was
once a male dominated profession is now a
more mixed one.
Also when I started at CLPB we only had
one legal executive — Neil Ockwell.
Unfortunately, unlike solicitors, the New
Zealand Institute of Legal Executives appears
to remains female orientated. There are
more male’s graduating and that is great to
see, but for whatever reason it still remains
a female orientated career choice.
Do you have specific memories or stories
Mary Stephenson..........according to a client she wa
you would like to share?
Seeing Gerald Alexander on his pushbike
doing settlements — a sight to see — a oneman band solicitor who never faltered.
Being introduced to a bicycle to get from
settlement to settlement on a Friday.
The day I had 98 settlements on the one
day. Fortunately the settlements took place
at our offices so this made the ordeal easier.
Client coming in to look for his solicitor. He
had not been in for years and forgot the
solicitors name. Description he gave was “a
short guy with glasses and a Chinese
secretary”. Guess what? Yes...Jim Keegan and
yours truly. I know I have a strong Glaswegian
accent but do I look Chinese?
What will you miss?
I will miss the buzz of being around a busy
office. Chatting at the end of the week with
my colleagues about who did the biggest
deal of the week, who had the most difficult
client and who had the best.
Canterbury tales
7
utive stepping down
you would like to be treated and, most
importantly, find the right balance between
your work life and your family life so you
can be happy at work.
I wish you all good luck and long happy lives.
Thanks Mary, I also asked some of Mary’s
colleagues at Cavell Leitch if they would like
to make any comments on Mary’s
retirement:
Celia Barker
I will so miss Mary, her wonderful accent
and attitude to work and life. She has been
an invaluable part of the “fabric” which has
created our special firm culture.
She is a strong personality of undoubted
integrity and a delightful sense of humour
(which did not even desert her when she
broke both wrists at a firm Christmas party!).
She has coped with many challenges and
changes at work and at home, and has been
a positive role model and influence to all
within the firm. I will also miss her comments,
her golf swing and company on “girls
weekends” when we play golf or fail to play
golf. Hopefully those will continue.
Jim Keegan
Mary has become a legend in her own
lifetime. Starting as a secretary she finishes
her career as revered legal professional who
is recognised nationally as an expert in
subdivisions. She has been an example and
inspiration to generations of legal executives
— always calm and professional and
generous with her time. She will be greatly
missed by her work colleagues and
members of the profession alike.
A step back in time
as Jim Keegan’s Chinese secretary.
My clients. The achievement’s they have
made and watching them grow to who and
what they are today.
Subdivisions. I actually love sitting down with
a resource consent and an LT plan and taking
it through to new titles. It never really felt
like work as I enjoyed it
My principals, my colleagues and my friends
— and not hearing all the office gossip.
Do you have any advice for practitioners
on how to have such a long and
successful career?
It’s an oldie but a goodie — be prepared to
laugh at yourself and accept liability when
you have done something wrong. It’s better
to front up rather than put the file to the
bottom of the pile, and be honest.
Remember the niceties in life when dealing
with other people. I love putting smiley faces
at the end of my emails. It usually gets you
one back.
Treat your colleagues and clients the way
A fascinating resource is available online, with the National Library’s Papers Past: http://
paperspast.natlib.govt.nz.
The Library has undertaken the task of digitising New Zealand’s newspapers and periodicals.
To date, the collection covers publications from 1839 to 1945 and includes 93 publications,
from the New Zealand Advertiser and Bay of Islands Gazette (published in Northland in
1840) to the Mataura Ensign from Southland (published from 1883 to 1914.)
The website also has references to other collections available online, such as the M_ori
Niupepa Collection, the newspapers published between 1842 and 1932, primarily for a
M_ori readership.
The database can be searched, as well as browsed by publication or date. Searches of well
known historic cases can produce accounts in a style very different from today’s court
reporting.
Under the headline “The Winton Child Murders”, the Otago Daily Times of 9 July 1895
reported in detail on the trial of Minnie Deans at the Supreme Court at Invercargill, including
listing the names of the (all-male) jury. The report included the following:
“His Honour’s summing up occupied two hours and a half, and when he had concluded
the jury retired without asking any questions at half past 12 o’clock. After an absence of half
an hour they returned to court with A VERDICT OF GUILTY.
The prisoner gave her age as 48, and in reply to the usual question as to whether she had
anything to say why sentence should not be passed upon her, replied, in a firm voice, “No
I have only to thank Detective McGrath for the kindness I have received from him.”
The report continued with a record of the judge pronouncing the sentence of death by
hanging. Following a failed appeal, Mrs Deans’ execution was carried out and although a
number of newspapers only briefly recorded the fact of the execution, there was a column
entitled “The Scaffold” in the Ashburton Guardian of 13 August 1895 which recorded, in
a style we may associate with more modern tabloid journalism, the details of Mrs Deans’
last moments.
The listing of jury names is not the only report which flies in the face of modern sensibilities
as to privacy. In the 1930s, the Auckland Star would list “Hotel Registers”, recording the
names of guests at the city’s major hotels, in the same column as the arrivals and departures
of Auckland’s passenger train services.
Of course, a popular use of the database is researching family history. But be careful what
you wish for. In searching the name of a not-too-distant ancestor, I discovered reports of a
number of court appearances. When I discussed my discovery, and my disturbance at this
revelation, with my colleagues in chambers, one of them assured me, without hesitation,
that it came as no surprise to him that I was descended from criminals.
Carolyn Browne
28
Canterbury
Canterburytales
tales
Case summaries (83)
Medical Assurance Society
of New Zealand Ltd v East,
Court of Appeal [2015] NZCA
250, 17 June 2015
INSURANCE LAW
Partially successful appeal relating to insurer’s
liability to indemnify respondent for damage
to residential property caused by February
2011 Christchurch earthquake - policy
provided for replacement value cover for
physical loss or damage to respondents’ house
- no earthquake damage to foundations
however damage caused by subsequent
settlement - parties agreed damage to be
repaired but differed on appropriate
methodology and scope of works required insured claimed policy entitled them to a
restoration standard where the condition of
the dwelling should comply with the Building
Code as if built in 2015 even if restored
condition was better than when new - insurer
argued the phrase “as new” meant “as it was
when new” - claimed policy’s reinstatement
provision limited liability to the cost of restoring
dwelling to the same condition as it was when
new in 2007, including compliance with the
Building Code at that time - dwelling to be
restored to “as it was when new” but not better
- (1) whether High Court finding correct that
words “cover the cost of” rebuilding or
restoring a dwelling obliged appellant to pay
cost of repairing damage irrespective of
whether liability to incur the costs had been
or would ever be incurred; - (2) whether High
Court correct that insurer’s obligation to rebuild
or restore the dwelling “to a condition
substantially the same as new, so far as
modern materials allow, and including any
territorial costs which may be necessary to
comply with any statutory requirements or
Territorial Authority by-laws” required that the
building be rebuilt or restored to standard of
a new dwelling today - Court noted it was
irrelevant that foundations were not damaged
- insurer’s attempt to sever off and isolate
damage to the house from damage to its
foundations when they were part of an
integrated whole, was artificial.
HELD: appeal allowed in part - (1) High
Court’s first declaration to be set aside appellant’s obligation to “cover costs”
expressed liability to provide sufficient funds
to secure or indemnify respondents against
liability to pay rebuilding costs when incurred
Comings & Goings
Information for this column must now be sent directly to the Canterbury Westland branch due
to privacy issues.
Please send information regarding changes to firms or practitioners to
[email protected] with subject heading Comings & Goings.
We assume that by the firm supplying the information that the individual people have agreed
to their names being published.
Moved
Laura McLoughlin-Ware (GCA lawyers to Duncan Cotterill).
Changed status
Kylie Dawson now Associate with Layburn Hodgins.
Change of detail
Kannangara Thomson have moved to Level 2, 575 Wairakei Road, Burnside, Christchurch. All
other details remain the same. Riccarton office to remain open until 31 August.
New Zealand’s legal research tool
- reinstatement clause reflected orthodox
obligation to indemnify, not to pay out money
where insured had not incurred and might
never incur liability to meet cost of restoration
- insured’s right to settlement absolute once
they incurred contractual obligation for
purpose of restoring; - (2) appeal otherwise
dismissed - High Court correct in relation to
standard of rebuilding and restoration - in
ordinary language in present context “as new”
was quality standard not temporal standard insured was entitled to “new for old” rather
than “old for old” - without specific engineering
response such as underpinning, the house
itself would not be restored to a condition
“substantially the same as new” in accordance
with current Building Code requirements when
restoration work carried out - no rational basis
for reading down insured’s right to limit it to
compliance costs with local authority
requirements in 2007.
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Canterbury Tales is the official newsletter of
the Canterbury Westland Branch New
Zealand Law Society.
Publications Committee: Zylpha Kovacs
(convenor), Simon Shamy (editor), Carolyn
Browne, Ann Maria Buckley, Daniel
Weatherley, Beatrix Chin.
All correspondence and photographs should
be forwarded to: The Branch Manager,
Canterbury-Westland Branch New Zealand
Law Society, Unit 1, 8 Homersham Place,
Russley, Christchurch. P. O. Box 565
Christchurch.
Phone 358-3147, fax 358-3148. email
[email protected].
Canterbury Tales is published 11 times per
year. The deadline for editorial and
photographs is the 8th of the month.
Disclaimer: Canterbury Tales is published by
the Canterbury Westland Branch New
Zealand Law Society. The opinions expressed
herein may not necessarily be those of the
Branch and have not been expressly
authorised. The Branch accepts no
responsibility whatsoever for any error,
omission or statement.
Canterbury tales
7
‘distinction,
ty and style’
ctitioners
practised
d friend,
and the
recently
and it is
coincide
years, to
t, he has
nal Court,
dictions.
the left
Many a
hat to sit
The only
Majesty’s
guished
obvious
claimed
scribes it
at he has
s work as
tribution
mitigation
n, good
properly
picuous
Child, a
equently
erests of
many and
d by his
and other
and will
into the
and the
e Courts
el being
available outside the Christchurch metropolitan
area and will accommodate them in some way
now that this Court will no longer sit in North
Canterbury.
That would be some way of reducing, at no
expense to the Ministry, the very real costs that
have been moved from the Ministry on to
practitioners and members of the public alike.
My learned friend has practised as a lawyer
not just before this Court but before almost
every jurisdiction in the land. Cases conducted
by him in the Rangiora District Court have on
occasion worked their way through to the Court
of Appeal and beyond.
After all, from time to time, judges and juries
do get it wrong, and Mr Hales has had a second
or third bite of the cherry. From time to time,
he has simply lost, and, true to his craft, he has
moved on to the next file.
My learned friend has represented the scions
of privilege, as well as the offspring of the poor.
In some cases he has been properly paid, but
in most cases he has done so at legal aid rates.
Regardless of the defendants’ backgrounds, he
has given them all, in equal measure, the
benefit of his experience, the fruits of his
research, and the polish of his presentation.
If this sitting today has any positive purpose,
then it should be to mark the forthcoming
The graduation
ceremony
for the
retirement
of Mr Hales.
The refreshments
afterwards
should
be
seen,
therefore,
not so
NZLS Canterbury-Westland branch
much as Judas hosting the Last Supper, but as
legal executives was held at the
a fitting celebration of the career of a man who
West
Wing
Function Rooms
of Lone
has
served
this community
with distinction,
with
Star
Riccarton
on
Thursday
18
dedication, with integrity, and with style.June
On
behalf of the Bar, but particularly the North
2015.
Canterbury Bar, I wish him well, and also his
ever
supportive
wife
Miranda,
in the
Eleven
(pictured
above)
of the
14challenging
graduates
times
ahead
of
them.
attended the graduation ceremony, with family,
May it please the Court.
Canterbury tales
9
14 new legal executives
Compass
friends and work colleagues joining them to
celebrate their success. A total of 48 people
attended the ceremony.
The event commenced with drinks and hors
d’oeuvres at 5.30pm. At 6pm Malcolm Ellis
(MC for the evening and manager of the
Canterbury-Westland branch of the New
Zealand Law Society) welcomed everyone and
offered his congratulations to the graduates.
Malcolm Ellis firstly called upon Colin Eason
(president of the Canterbury-Westland branch
of the New Zealand Law Society) who very
wittily spoke about some of his experiences as
a barrister.
Next to speak was Janine Ballinger (partner,
Cavell Leitch) who provided a fantastic talk
about the different challenges legal executives
may face in their job, and some important tips
for a successful career.
Janine was followed by Jill O’Neill (senior
registered legal executive, Lane Neave), who
talked about how she became a legal executive,
job satisfaction and how important it is to
recognise when you need assistance from other
colleagues on a difficult transaction.
At the conclusion of the speeches Malcolm Ellis
and Colin Eason presented the diplomas to
the attending graduates. The 2014 NZLS legal
executive graduates were:
Reena Cherian, Fan Gao, Juliann Glasier, Tessa
Hansen, Ann Harris, Ruth Judkins, Angela Keir,
Sarah Kong, Josaine Langton, Joanne
McMecking, Emma Morgan, Alison Rouse,
Rosemary Sisson and Danielle Thomas.
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10
Canterbury
Canterburytales
tales
Canterbury Westland
Branch/NZLS
Education
Programme
Peter O’Donnell given
Family Court farewell
Continued from Page 1
Proudly sponsored by
NZLS Continuing Legal Education (CLE
Limited)
To register and for other information check
the CLE website,
www.lawyerseducation.co.nz
Christchurch
August
Peter with two of the staff of The Bog Irish
Bar who presented him with a cake shaped
like a Guinness pint glass.
Judge Somerville and Jeremy Daley.
4 — Persuasive Legal Writing.
11 — Hard Bargaining, Soft Skills - mediating
mainly about money.
12 — Farm Succession Planning Intensive.
16-22 — Litigation Skills Programme.
24 — Family Dispute Resolution.
27 — Webinar, LinkedIn for Lawyers.
September
7 — Webinar, Challenges for Bodies
Corporate.
8 — Webinar, ACC The Right to Sue.
17 — Webinar, Cyber Presence after Death.
22 — Trusts and the PRA for Property
Lawyers.
October
14 — Webinar, Commercial Leases.
19 — Health & Safety in Employment Law.
Fran Taylor-Boyd, Judge Garry Collin and
Dennis Standring.
Anya Gartner and Val Munro.
Out of Christchurch
10 August — Wellington, 11 August Auckland,
Proceedings before the Coroners Court.
13 August — Auckland, 14 August Wellington,
Corporate Governance Intensive.
17-18 August — Wellington, Legal Executives
Conference.
10 September — Auckland, Tax Conference
2015.
8 October — Wellington, Public Law Intensive.
14-16 October 2015 — Family Law
Conference, Dunedin.
19-20 October — Wellington, Introduction
to High Court Civil Litigation Skills.
30 October-1 November — Wellington,
Understanding Mediation part A.
Peter O’Donnell and Bob Perry.
Kaylene Bristow, Judge Costigan and
Alexandra Beaumont.
Christchurch Branch seminars
Missing Will
Employment Law Conference 18 August
2015 at Commodore Airport Hotel. Mark
your diary. Watch for flyer.
Seminar — Modern Conveyancing for Older
Litigators — Electronic Conveyancing, step by
step. Watch for flyer.
Social
Family Law Dinner — Thursday 10
September. Watch for flyer.
Lorraine Michell and Diana Shirtcliff.
Vitale Tenisio-Sauila — Would any lawyer
holding a will for the above named, late of
Christchurch, factory worker, born 2 January
1990, died 23 November 2014, please contact
Indira Sirisena, Strowan Law, email
[email protected], phone (03) 3523769, fax (03) 352-7016. Postal address: PO
Box 5046, Christchurch 8542.
Canterbury tales
11
Successful litigation seminar
By T J Mackenzie,
for Canterbury-Westland
Litigation Committee
On 17 June the Litigation Committee
were pleased to have their Honours
Associate Judges Matthews and
Osborne, and Judge Kellar of the
District Court, present a seminar
discussing current topics in civil
litigation to a full field of practitioners.
A particular problem is demands that are issued
not by lawyers but by other professionals who
do not have the same professional obligations
as lawyers. The judge went on to discuss the
helpful comments of the Court of Appeal in
Industrial Group Limited v Bakker (2011) 12
PRNZ 413 (genuine disputes) and AMC
Construction Limited v Frews Contracting Limited
[2008] NZCA 389 (solvency).
The Litigation Committee wishes to thank their
Honours for giving up their valuable time and
providing a stimulating and helpful presentation.
Feedback has been great and the Litigation
Committee looks forward to further events.
Practitioners should feel free to propose any
educational topics they might wish to be
considered.
A handout of the seminar is available by emailing
[email protected].
Situation Vacant
Judge Osborne began the evening with a
discussion of issues in summary judgment. His
Honour presented recent statistics
demonstrating that in 2014 approximately a
• Based in Queenstown, the adventure capital of New Zealand
third of summary judgment applications were
• Dynamiclawfirmwithtraditionalvalues
withdrawn, a third were granted unopposed,
• Opportunitiesforcareeradvancement
and of the remaining contested third, a near
Berry & Co is a long established and well respected Otago law firm providing a broad range of legal services
even split of judgment and dismissal occurred.
for their business and personal clients. They require senior and intermediate level solicitors to assist in their
His Honour also discussed ways practitioners
Queenstown office providing top-tier legal services to their loyal client base.
could and should make the file easier to work
Queenstown offers an exciting and progressive community with unique lifestyle opportunities. Berry & Co
with. Of particular discussion were unwieldy
are interested in hearing from solicitors who are looking for their next challenge and would like to progress
affidavit exhibits — running well past ‘Z’ and
their career in a dynamic law firm with traditional values.
sometimes into three characters in the worst
The two roles available are:
cases.
- A generalist role for an intermediate solicitor with a minimum of 3 years PQE in property or litigation
His Honour encouraged the practice of annexing
- A commercial role for a senior solicitor with a minimum of 6-8 years PQE in property/commercial. This
all documents as a single exhibit with all of the
role offers definite career advancement opportunities for the right person
pages paginated, so only one exhibit note is
A “can do” attitude, excellent organisational skills, as well as the ability to engage with clients and work as
necessary (i.e. “A”). The simple principle being
part of a team are highly desirable attributes required for these roles.
that as long as the deponent verifies all of the
Berry & Co can offer a vibrant and supportive environment, involving interesting high quality work for a variety
documents, each document does not need to
of local and international clients. They are committed to on-going professional development for all staff by
be a separate exhibit with its own note, which
ensuring excellent opportunities for learning and development.
makes the bundle much easier to work with
(for the court, counsel and the solicitor taking
Ifyouwouldlikefurtherinformationand/oracopyofapositiondescription,
the affidavit).
or to apply for one of the roles please contact Madeleine Hawkesby on
His Honour also noted that it is helpful for
021 495 993, or email: [email protected] All enquiries and
counsel to provide their bundle as two bundles
applicationswillbetreatedwiththestrictestconfidence.Youcanalsofindout
— one with the pleadings and affidavits and one
more about Berry & Co at www.berryco.co.nz
with the evidence exhibits, to allow easier crossreferencing.
Judge Kellar then provided a helpful presentation
Canterbury Tales
on the District Court Rules 2014. It was noted
that the new rules have abolished the previous
notice of claim/response/information capsule
regime and returned to a traditional pleadings
system. Summary judgment is freely available
under the 2014 rules which in many ways now
mirror the High Court Rules.
One point of difference to note however is that
whilst under the High Court Rules initial
discovery is filed with most proceedings, in the
District Court the parties instead file a list of
URL
Closi
documents relied on, which
areread
thenby:_______________________________
to be
Proof
With: _______________________________
Date:_______________________________ tested:
che
provided upon request. Judicial resourcing for
civil files in the District Court remains difficult
and practitioners will need to bear that in mind
revisio
particularly when considering what form of trial
1 2
$0 $0
to seek.
Judge Matthews then took practitioners through
a discussion on the statutory demand
procedure.
job:C52369
PLEASE NOTE:
that we have prepared this
Whilst many practitioners might be familiar with
full
colour
12x2types
advertisement proof based
sithe
ze:same
format:
the issues, the judge noted that
understanding of the instru
of cases continue to crop up
irresponsibly
received. In approving the
publication
run date
position
sort
cost (excl gst)
advertisement, it is client’s
issued demands followed by dogmatic litigation.
Solicitors
Practice Notice
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12
Canterbury
Canterburytales
tales
Resilience is so important
By Lucy Hone
I was in the last year of my PhD
studies when a policeman phoned
to say he was on his way to see us.
We had just finished one of those hearty
mountain meals at Ohau Lodge, recently arrived
for Queen’s Birthday weekend, with plans of
biking the new Alps to Ocean trail ahead. At
that moment we knew our lives had changed
forever.
There was an agonising time when we were
forced to wait for the policeman’s arrival, and
after that, once he had told us, we have been
on something of a fight for survival ever since.
As I write that it sounds overly dramatic, but in
reality that is precisely what this past year has
been for us — a fight to survive the loss of our
beautiful daughter, to learn to live without her,
and to keep family life as normal as we possibly
can for her two brothers.
Before Abi died (alongside her dear friend Ella,
and Ella’s mum, who was also one of my
closest friends), I thought my academic
knowledge of resilience had already been put
to the real world test by the Canterbury quakes.
In the immediate aftermath of the February
earthquake I was called upon to assist in the
psychosocial recovery, working with Search and
Rescue workers, the Ministry of Education,
Fletcher EQR and running community resilience
seminars across the city.
That first year post-quakes made me reconsider
everything I had learned about resilience from
the world’s academic gurus at the University
of Pennsylvania, as I sought ways to translate
important empirical research findings into
meaningful and effective strategies that would
support real people struggling to bounce back
from trauma.
From my studies I knew that resilience can be
learned. In fact, Karen Reivich (recognised as
one of the field’s leading research scientists,
whom I had been lucky enough to study from
in my time at the University of Pennsylvania)
had only recently been called upon to teach
the skills of resilience to all 1.1 million US
soldiers in an effort to make them as
psychologically fit as they have traditionally
been physically fit. If she could work out how
to make this material palatable to thousands
of American grunts, surely I could come up
with some tools that would help the people of
Christchurch!
So, before Queen’s Birthday weekend last year,
I had an understanding of how optimism,
supportive relationships
and a flexible attitude
really can aid posttraumatic recovery. The
events of this last year,
however, have convinced
me more than ever how
critical resilience skills are,
and how crucial it is that
they are taught to
everyone.
In a world facing epidemic
proportions of mental
illness, where people are
self-medicating with
booze and drugs just to
survive, I want to introduce
New Zealanders to other
options. It is my new
mission then, to take the
best findings from wellbeing psychology and
resilience science out of
academia and enable their
dissemination throughout our schools and
workplaces. Only that way can we equip
ourselves to effectively combat stress, and
prepare our children for the tests of life — not
just a life full of school tests.
While I have struggled to find NZ-specific
statistics on lawyer’s well being, it is clear from
anecdotal evidence (and backed by Australian
data) that the prevalence of mental illness
among the legal professional is high.
Let us learn from America — where 52% of
lawyers describe themselves as dissatisfied, and
40% of law students have suffered depression
— and start training our troops before
depression takes hold. There is so much you
can do to promote your own healthy
functioning, and believe me I am now walking
proof that these strategies really do work.
Working as a British-trained journalist for the
first half of my career, I have as much natural
scepticism as any of you lawyers when it comes
to tree-hugging strategies to boost positivity,
but... the last year has revealed the fundamental
importance of simple mental health tricks such
as avoiding certain harmful “thinking traps”,
understanding how optimistic behaviour really
works, the advantages of living more mindfully,
and learning to question whether my current
habits are helping or harming my quest to keep
moving forward, albeit begrudgingly, in this new
foreign land without my little girl at my side.
I am not saying it is easy to learn and implement
these strategies, but I do stand by the fact that
they work.
Lucy Hone, above, is an expert in resilience.
An academic expert that is. But events in
her personal life have tested that academic
knowledge to the limits over the last year.
She will be the guest speaker at the
Canterbury Women’s Legal Association
Professional Women’s Dinner to be held on
20 August 2015 at the Addington Coffee
Co-Op (more details about the dinner will
be advertised shortly). The dinner is being
sponsored by Oxford Women’s Health,
which is delighted to help support the CWLA
dinner.
“As a private clinic specialising in all aspects
of women’s health we know how vital it is
to ensure that women feel informed about
all aspects of their health and well-being,
said a spokesperson for the clinic.
“Our health professionals are highly
respected in their fields of gynaecology,
obstetrics, fertility, oncoplastic breast and
general surgery, physiotherapy, nutrition
and clinical psychology.
“Women of all ages come to us for advice
and treatment of endometriosis, pelvic pain,
fertilit y issues, menstrual problems,
prolapse, incontinence and menopausal
issues. And for couples who are struggling
to have a baby, we offer our world-leading
fertility clinic, Genea Oxford.
“We pride ourselves on our professional,
caring approach and making treatment as
comfortable and stress free as possible.”
For
more
information
go
to
www.oxfordwomenshealth.co.nz. .