Flat mate or de facto
The Property (Relationships) Act 1976
("The Act") provides an equal sharing presumption to relationship property for
qualifying relationships. Qualifying relationships are marriages, civil unions
or de facto relationships that are a minimum of three years in duration.
Section 2D of the Act defines a de facto
relationship as a relationship between two persons who are both aged over 18
years, who "live together as a couple" (either heterosexual or same sex
relationships) and are not married or in a civil union to one another.
If the parties are under the age of 18
years, the de facto relationship starts from the time the younger partner
turns 18 years old.
In determining whether two persons are
"living together as a couple", all circumstances of the de facto relationship
are to be taken into account including the matters recorded at section
2(D)(2), which are:
* The duration of the relationship.
* The nature and extent of the common
residence of the relationship.
* Whether or not a sexual relationship
* The degree of financial dependence or
interdependence and any arrangements for financial support, between the
* The ownership, use, and acquisition of
* The degree of mutual commitment to a
* The care and support of children
(either from that relationship or from previous relationships).
* The performance of household duties.
* The reputation and public aspects of
None of the above factors are essential
to determine whether the parties are living together as a couple and the Court
is entitled to attach such weight to any matter as is appropriate in the
circumstances of that relationship.
Inside this edition
Flat mate or de facto partner?
warrants of fitness
The ins and outs of a restraint of trade clause
Citizen's arrest: An
Buying goods subject to security - the "ordinary course of business" exemption
Property purchase - Meth testing
Reform - Health and Safety at Work Act
Marriages and Civil Unions are legal
processes, which require the parties to opt in from an agreed commencement
date. However, there is no formal process that records the commencement date
of de facto relationships. This usually leads to the parties unknowingly
entering into a legally defined relationship well before they chose to declare
their relationship (agree that their relationship is serious enough to commit
to one another or tell friends and or family they are in a relationship)
leading to the Act applying retrospectively, rather than from an agreed date.
This can be financially crippling to
parties that may have amassed assets and property prior to the commencement of
the de facto relationship as the partner may be entitled to half the value of
those asset and property.
The ending of a de facto relationship is
a question of fact and occurs either when one partner regards the relationship
as over and has communicated that intent to the other partner or one partner
Parties are also able to enter into
contemporaneous relationships (marriage and de facto at the same time).
A remedy available to parties is that
they are able to contract out of the terms of the Act by way of s21A of the
Act. This type of agreement is called a Contracting Out Agreement or otherwise
known as "pre-nup".
If you find yourself in the above
situation, gaining legal advice from a lawyer that deals with relationship
property law could save you a lot of money in the future.
Many commercial and multi-residential
buildings require an annual building warrant of fitness (BWOF) to prove that
the building's safety systems have been maintained and inspected. The BWOF is
obtained by the building owner and provided to the Council, and must be
displayed in the building in a visible place at all times.
Building Warrant of Fitness
The name "Building Warrant of Fitness"
can be misleading, because there is no obligation to inspect the building as a
whole, and the document makes no statement as to the fitness of the building
itself. Rather, it refers only to procedures listed in the compliance schedule
that relate to specified systems in the building.
The Building Act 2004 ("the Act")
provides that a building other than a single household unit requires a
compliance schedule if it has one or more specified systems. This means most
homes will be exempt, but any building that has more than one household (such
as an apartment or townhouse) or any building that includes other
non-residential uses must have a compliance schedule and annual BWOF, if it
contains a specified system. The compliance schedule will state and describe
each of the specified systems, state the performance standards, and describe
the inspection, maintenance and reporting procedures to be followed in respect
of each of those specified systems.
A specified system is a system or
feature contained in or attached to the building which contributes to the
proper functioning of the building, and has been declared by the Governor
General to be a specified system for the purposes of the Act. Specified
systems include (amongst other things): fire suppression systems (sprinklers);
automatic or manual emergency warning systems for fire or other dangers
(alarms); electromagnetic automatic doors or windows; emergency lights; riser
mains for use by fire services; lifts, escalators and travellators; air
conditioning systems; smoke control systems; cable cars; and in some
circumstances that typically relate to fire escape, they include smoke
separations; fire separations; final exits and communication signs.
Independently Qualified Person
To complete the BWOF an owner will need
to obtain certificates of compliance from an independently qualified person
who can certify that the inspection, maintenance, and reporting procedures
stated in the compliance schedule have been fully complied with during the
previous 12 months. Typically this will include certification that any
remedial action that may have been needed has been completed. Larger buildings
may require several certificates for different specified systems. In addition
to these annual inspections, some owners may still be required to carry out
minor inspections that are specified to occur daily, weekly or monthly.
For newer buildings, compliance
schedules are typically issued as part of the building consent process,
however all buildings must still comply. If a building requires a compliance
schedule and does not have one, the owner could be liable for a fine up to
$20,000, and further fines of $2,000 per day while that offence continues. If
a building owner fails to obtain a required BWOF they could be liable for a
fine of up to $20,000.
Finally, it is the building owner's
continuing obligation to ensure that each of the specified systems is
performing and will continue to perform.
Restraint of trade
The world of business is increasingly
competitive. Business owners as employers have become more focused on securing
and safeguarding information that sustains their business, such as trade
secrets and profit margins. Those employers may consider the inclusion of a
restraint of trade clause in their employment agreements as a safeguard
against employees leaving their employment and using this sensitive
information to the former employer's detriment.
What is a restraint of trade clause?
A restraint of trade clause is designed
to protect a business's sensitive information to which its employees may have
access. The most common conditions in restraint of trade clauses tend to
prohibit or limit an employee from working in a certain field of expertise,
and/or in a designated geographical location, and/or for a specified period of
An employer considering the inclusion of
a restraint of trade clause within an individual employment agreement is
advised to consider offering the employee consideration such as an increase in
wages or salary, given the imposition the employee may face if a restraint of
trade clause is sustained.
Practicalities to consider
A restraint of trade clause does not
automatically protect an employer. The Courts take a careful approach when
making determinations about restraint of trade clauses, and often deem
restraint of trade clauses unenforceable from the outset.
Where a dispute arises, the Courts
examine all aspects of the restraint of trade clause, paying particular
attention to whether the conditions are reasonable in order to protect the
employer’s interests, relative consideration or compensation, as well as the
reasonableness and practicality of the conditions imposed upon the employee.
The Courts may consider the following
factors when considering the enforceability of a restraint of trade clause:
* Whether the former employer has a
proprietary interest that is capable of being protected; (for example, did the
employee have access to confidential information or having built up a strong
* Whether it is reasonable to restrict
the employee’s employment options/activities;
* Whether period of the restraint is
* Whether the geographical limits of the
restraint are reasonable.
Before considering inclusion of a
restraint of trade clause it is vital to understand what is the interest or
the purpose of the restraint of trade clause; what reasonable parameters may
be imposed in order to achieve that purpose; and in return whether fair
consideration or compensation been offered to the employee.
Restraint of trade clauses can be very
beneficial for employers, especially if a business is reliant on securing and
safeguarding its interests critical to the successful running of the business.
It is essential to understand all aspects of a restraint of trade clause
before relying on one to protect your business, as finding the right balance
in a restraint of trade clause is vital to ensure that it is enforceable. We
are available to help draft and discuss such terms.
Ordinary citizens have a limited ability
to make an arrest; however, their powers are not as wide as you may think.
This article will interest security
contractors, business owners and anyone else who might find themselves in the
position where they might need to react to a crime.
Technically you only have the actual
right to make an arrest if you have been asked to assist someone else who is
performing a legal arrest (such as a Police Constable or Fisheries Officer) (s
316 Crimes Act 1961). As an ordinary citizen, you are however given limited
protection in some circumstances if you do make an arrest (s 35-38 Crimes Act
1961). This means that although you do not usually have a right to arrest, you
might be protected from criminal responsibility if you do so.
* Section 35 gives protection where you
arrest a person who you actually find engaged in a criminal offence at night.
If you find them by day you are protected only if the offence carries a
maximum punishment of three or more years imprisonment. For these purposes
'Night' means between 9 p.m. and 6 a.m.
* Section 36 does not require you to
actually find an offender in the act. Protection is given if you arrest a
person that you honestly and reasonably believe to be committing a criminal
offence at night.
* Section 37 overlaps, but is somewhat
limited. Protection is given where you arrest a person that you honestly and
reasonably believe already has committed a criminal offence (by day or by
night), so long as the offence actually occurred, even if it was not the
person who you arrested that committed the offence.
* Finally, section 38 provides
protection during flight, if you arrest somebody that you honestly and
reasonably believe committed a criminal offence and is escaping from and being
pursued by someone else whom you reasonably believe has an authority to arrest
In all cases you must have an intention
to make prompt contact with the Police in order to set in motion the processes
It is important to note that protection
is only granted for an arrest relating to a criminal offence, meaning an
offence under the Crimes Act 1961 (such as murder, burglary, assault or home
invasion). Protection is not granted for other offences, such as those which
may be covered by the Summary Offences Act 1981 (such as disorderly behaviour,
graffiti and tagging or indecent exposure) or traffic offences, which are
covered by the Land Transport Act 1998 (such as dangerous or careless
To actually arrest someone, you need
only make it clear of your intention to apprehend. Physical contact or
restraint is not a legal requirement to make an arrest, but may become
necessary in some circumstances. If so, the Crimes Act provides you with some
protection against the use of reasonable force if, and only if, your arrest is
If you get it wrong there is the
potential to face criminal charges for assault or kidnapping or civil action
for false imprisonment.
When buying or leasing valuable goods it
is important to check that they are not subject to a security interest.
Otherwise, the secured party is able to use its security interest to call in
the goods you purchased or leased, to repay the debt they are owed.
However, the Personal Property
Securities Act 1999 ("the Act") provides some protection. One situation where
a purchaser is protected is if you are dealing with a seller or lessor in the
ordinary course of their business. For the purposes of this article, seller
means both a seller and a lessor.
Section 53 of the Act provides that when
you buy or lease goods that have been sold or leased in the ordinary course of
business of the seller, you take those goods free of any security interest.
This exception does not apply if you
know that the transaction will be in breach of an existing security agreement,
or where the security interest was granted by a person other than the current
By way of example, this exemption can
apply when purchasing a vehicle from a dealer. The vehicles for sale will
often be subject to a security interest in favour of a third party (perhaps
the vehicle's former owner or the dealer's bank), and the dealer clearly sells
vehicles in the ordinary course of their business.
If you were to buy a vehicle from the
dealer you would therefore usually receive the vehicle free of the third
party's security interest, even if that interest had not been discharged as
part of the sale. In contrast to this, if you buy the vehicle from a private
seller via Trademe without first ensuring that all security interests have
been discharged, the security holder could recover that vehicle from you to
repay any debt still owed by the private seller - even if you paid for the
vehicle in full.
Whether a sale or lease is "in the
ordinary course of the seller's business" depends on the facts of each
situation. Some common factors the Courts consider include whether the
transaction took place at the seller's business premises, and the quantity and
price of the goods sold or leased. This means for example that if you are
buying from a car dealer, but the vehicle you buy is bought at a remote place
unrelated to the dealership, and for less than market value, the transaction
might not be considered as part of the seller's ordinary course of business
and this exemption may not apply.
We recommend you search the Personal
Property Securities Register to determine whether there are any registered
security interests that relate to the property you are buying. If there is an
interest registered, you should carefully consider whether you are protected
by the 'ordinary course of business' exemption, and if not, you should take
steps to ensure that the security interest is discharged before you part with
Property Purchase - Meth
Methamphetamine contamination has been described as being so prevalent that it
could be worse than the leaky home crisis that affected New Zealand in the
late 1990s and early 2000s.
Ministry of Health guidelines do not
identify any safe level of methamphetamine contamination, and guidelines
around the world vary. In New Zealand, decontamination is recommended if 0.5
micrograms (0.0005g) are detected in one 10cm by 10cm area. If detected, your
local Council has powers under the Health Act 1956 to order cleansing of the
property and could place a permanent requisition on your property file.
The chemicals used to cook
Methamphetamine and the residue from its use can be highly toxic and can
linger for a long time after being absorbed into housing materials. Health
risks include burns, respiratory and neurological damage. Decontamination can
require complete redecoration to the affected area, including replacement of
carpets, curtains, and wall linings.
Reform - Health & Safety at
Work Act 2015
The Health and Safety at Work Act 2015 (“the Act”) came into force on 4 April
2016. This Act has significant implications for workers and business owners
alike, reforming New Zealand’s health and safety system.
The Act introduces the concept of a
'person conducting a business or undertaking' (“PCBU”) and sets out a wide
range of PCBU obligations - it is important to note that the PCBU concept also
applies to entities running businesses, such as companies. The Act also
imposes a positive duty on officers of a PCBU (for example a director of a
company or partner in a partnership) to exercise due diligence in ensuring
compliance with health and safety regulations, failing which, officers can be
For workers, there is an increased
emphasis on worker participation and consultation with PCBUs, as well as an
obligation on workers to take reasonable care for their own health and safety
and not to affect the health and safety of others.
If you have any questions about the newsletter items,
please contact me, I am here to help.
Scannell & Co - 122
Queen Street East, Hastings
(06) 876 6699 Fax: (06) 876 4114 Email:
information in this newsletter is to the best of the authors' knowledge true
and accurate. No
liability is assumed by the authors, or publishers, for any losses suffered
by any person relying directly or indirectly upon this newsletter. It
is recommended that clients should consult S J Scannell & Co before
acting upon this information.
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